The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Banana Splits
I appreciate the replies from Orin, Will, and Sam. We have very different conceptions on what role a scholar should play and what role a judge should play. My writings in this area are both retrospective and prospective. I look backwards to see what qualifications a judge had at the moment of their nomination. I also look backwards from the present, to the moment of their confirmation, to assess how those qualifications may have predicted their jurisprudence. I feel fairly confident with my retrospective criticism. A person's pre-confirmation record is their record, and it cannot be changed. And a Justice's decisions are available for all to read. I write more posts about Supreme Court decisions than I care to count.
I, admittedly, feel less confident when making predictions about a judge's future trajectory. My experience with a Supreme Court prediction market has given me some insight into the process, but the Justices continue to surprise me, and everyone else, in ways that are hard to fathom. What loop ties things together? Given a Justice's unpredictability after confirmation, it is of the utmost importance to carefully scrutinize all of a prospective justice's actions before the nomination, and try to extrapolate a trajectory.
And those observations bring me back to Justice Barrett. John McGinnis, for example, favorably compares Justice Barrett to Justice Scalia as a scholar-justice. It is true that they were both academics. But the similarities end there. Justice Scalia was the general counsel at the Office of Telecommunications Policy, chaired ACUS, headed the Office of Legal Counsel, argued before the Supreme Court, worked at AEI, a prominent think tank, spent four years on the D.C. Circuit, and was very much in the mix on all issues of public concern.
I think much the same could be said for other academics who became Supreme Court Justices. Elena Kagan was Solicitor General (briefly), served in the White House Counsel, and was the Dean of Harvard Law School--all experiences that prepared her for the Court. Justice Breyer was a famous administrative law professor, but spent many years working in the Senate on Judicial Nominations, and served as Chief Judge of the First Circuit. Justice Ginsburg, in addition to being a well-regarded professor, was at the heart of the ACLU's women's rights litigation project, and then served on the D.C. Circuit for more than a decade. Jump back a few decades, and look at Justice Frankfurter. He advised FDR, was closely involved in New Deal politics, served as an assistant to the Secretary of War, was a JAG, and served in various other government positions. William O. Douglas was a law professor at Yale, but later headed the Securities and Exchange Commission. Joseph Story was appointed to the Supreme Court at the young age of thirty-two, but by that point he had already been a distinguished member of the Massachusetts Bar, a state attorney for Essex County, Massachusetts, served in the Massachusetts House of Representative, including as Speaker, and was elected to the United States House of Representatives.
Am I missing any other Justices who were academics? We can throw Robert Bork in the mix. In addition to being a law professor at Yale, he served as Solicitor General, worked as Acting Attorney General, survived the Saturday Night Massacre, plus a tenure on the D.C. Circuit.
With the exception of Frankfurter, all of these judges held some sort of apex position, in which they were in charge of making difficult, final decisions. The buck stopped with their commission as an "Officer of the United States." And maybe the Frankfurter nomination is telling. He confounded FDR and other New Dealers by how "conservative" he became. He didn't have a judicial background, and wouldn't you know it, he surprised those who supported him by exercising the utmost restraint. The analogue for Barrett is not Souter or O'Connor, but might just be Frankfurter. A person who lacked the background on the bench, or in a position of power, defaults to caution.
To be sure, Justice Barrett had a tenure on the Seventh Circuit. Barrett's Senate Judiciary Committee questionnaire indicated she participated in the disposition of approximately 900 cases between October 2017 and September 2020. According to Westlaw, Justice Barrett wrote about 80 majority opinions, including a handful of dissents and concurrences. That is certainly the start of a record, but it was fairly brief in telling us much about a judicial philosophy--especially since there were so few cues in her record as an academic. By contrast, Judge Kavanaugh participated in the disposition of 2,700 cases. And, according to Westlaw, he wrote about 1,300 opinions (including majority opinions and separate writings.) The analysis in nine of Kavanaugh's 10 most significant opinions were later adopted by by the Supreme Court. Again, for all of my grievances about Justice Kavanaugh (which have thankfully been fewer of late), he was a known quantity--we knew what we were getting. Ditto for Justice Gorsuch.
What about Justice Barrett's record, knowing everything we know about all Supreme Court justices who came before, would indicate that this person should be a Supreme Court nominee? Her potential was vast, but trajectory was unknowable. This is not to say that Barrett was not a respectable academic. She was. I agree with Will that Barrett chose to spend her time on the things that were important to her. As an academic, that was entirely her prerogative. But the overwhelming majority of all academics (present company included) have not done the things needed to qualify for a Supreme Court seat.
I'm reminded of one of my favorite Scalia stories, which is retold in Ted Cruz's 2015 biography:
Everyone knew that two of the stars on the conservative side, and thus possible nominees, were Robert Bork and Scalia, both on the D.C. Circuit. So one day Scalia was walking in a parking garage at the appellate court when two U.S. marshals stopped him. "Sorry, sir," one of them said. "We're holding this elevator for the attorney general of the United States."
Scalia pushed past them, entered the elevator, and pressed a button. As the doors closed, Scalia shouted out, "You tell Ed Meese that Bob Bork doesn't wait for anyone!"
There are things a Justice is not taught in law school.
This topic is perhaps complicated further because so many academics have personal relationships with Barrett--something I don't have. I met her only once, briefly, before she was appointed to the Seventh Circuit. It is difficult to separate the friend you know from the public official they've become. Then again, Justice Kavanaugh served as a guest judge in my high school moot court competition shortly before his nomination. I don't hold back, as you can tell.
As we look forward to the next election, it is important to repeat lessons that have not been learned. A Supreme Court vacancy comes around once in a blue moon. When making the decision of who to select, we must rely on complete knowledge about a person's past practice, and predict the person's likely trajectory. And after the nomination is made, we should be candid and careful to evaluate the decision that was made.
