I thank Orin, Will, and Sam for their responses. We have very different ideas about the role of academics and the role of judges. My work in this area is both retrospective and prospective. I look back and see what qualifications the judge had when he was nominated. I also looked back to the present, to the moment they were confirmed, to assess how these qualifications predicted their jurisprudence. I’m fairly confident in my retrospective criticism. A person’s pre-confirmed record is his or her own and cannot be changed. The judge’s decision is available for everyone to read. I’ve written more posts about Supreme Court decisions than I care to count.
Admittedly, I lack confidence in predicting the judge’s future trajectory. My experience with Supreme Court prediction markets has given me some insight into the process, but the justices continue to surprise me and others in incomprehensible ways. What loop connects things together? Given the unpredictability of justices following confirmation, it is critical to scrutinize all of a future justice’s behavior before nomination and try to extrapolate his or her trajectory.
These observations remind me of Justice Barrett. For example, John McGinnis compared Justice Barrett to Justice Scalia as a scholarly justice. Indeed, they are all scholars. But the similarities end there. Justice Scalia was general counsel of the Office of Telecommunications Policy, served as ACUS president, led the Office of Legal Counsel, argued before the Supreme Court, worked at the renowned think tank AEI, and spent four years on the D.C. Circuit Court. in the mix on all matters of public concern.
I think the same is true for other academics who become Supreme Court justices. Elena Kagan served briefly as deputy attorney general, White House counsel, and dean of Harvard Law School—all experiences that prepared her for the courthouse. Justice Breyer is a renowned administrative law professor but spent many years working on judicial nominations in the Senate and served as chief judge of the First Circuit. In addition to being a respected professor, Justice Ginsburg was a central figure in the American Civil Liberties Union’s Women’s Rights Litigation Program and served on the D.C. Circuit Court for more than a decade. Go back a few decades and look at Justice Frankfurt. He advised Roosevelt and was closely involved in New Deal politics, serving as assistant to the Secretary of War, serving as a member of the Joint Military Advisory Group, and holding various other government positions. William O. Douglas was a law professor at Yale University and later chairman of the Securities and Exchange Commission. Joseph Story was appointed to the Supreme Court at the age of thirty-two, but by that time he was already a distinguished member of the Massachusetts Bar, State’s Attorney for Essex County, Massachusetts, and Served in the state House of Representatives, including as speaker, and was elected to the U.S. House of Representatives.
Have I missed any other scholarly justices? We can add Robert Bock to the mix. In addition to being a law professor at Yale, he served as deputy attorney general, acting attorney general, survived Saturday night’s massacre and served on the D.C. Circuit Court.
With the exception of Frankfurt, all of these judges are in some sort of top position, tasked with making tough final decisions. Responsibility stops with their appointment as “officers of the United States.” Perhaps Frankfurt’s nomination speaks volumes. He became so “conservative,” which confused Roosevelt and other New Dealers. He had no judicial background and wouldn’t you know it, and he showed extreme restraint that surprised those who supported him. Barrett’s analogue isn’t Suter or O’Connor, but might just be Frankfurt. A person who lacks a bench background or a position of power will default to caution.
To be sure, Judge Barrett served on the Seventh Circuit. Barrett’s Senate Judiciary Committee questionnaire shows that she was involved in about 900 cases between October 2017 and September 2020. Includes minority dissenting opinions and concurring opinions. This is certainly the beginning of a record, but it tells us a lot about judicial philosophy rather briefly—especially since there are few clues in her record as a scholar. By comparison, Judge Kavanaugh has been involved in 2,700 cases. And, according to Westlaw, he wrote approximately 1,300 opinions (including majority opinions and separate works). Again, while I have a lot of beef with Judge Kavanaugh (which thankfully has lessened lately), he’s a well-known figure – and we know what we’re going to get. So does Justice Gorsuch.
Does Judge Barrett’s record, knowing everything we know about all former Supreme Court justices, indicate that this man should be a nominee to the Supreme Court? Her potential is huge, but her trajectory is unknown. This is not to say that Barrett is not a respected scholar. she. I agree with Will, Barrett chooses to spend her time on things that are important to her. As an academic, this is entirely her prerogative. But the vast majority of academics (including incumbents) have not done what is needed to qualify for a seat on the Supreme Court.
I’m reminded of one of my favorite Scalia stories, retold in Ted Cruz’s 2015 biography:
Everyone knows two conservative stars, so likely nominees are Robert Bork and Scalia, both from Washington, DC. One day, while Scalia was walking in the Court of Appeals parking lot, two U.S. Marshals stopped him. “Sorry, sir,” one of them said. “We are reserving this elevator for the U.S. Attorney General.”
Scalia pushed past them, entered the elevator, and pressed the button. As the door closed, Scalia yelled, “You tell Ed Meese that Bob Bork won’t wait for anyone!”
Some of the things the justices do are not taught in law schools.
The subject may be more complicated because many scholars have personal relationships with Barrett—and I do not. I met her only once, briefly, before she was appointed to the Seventh Circuit. It’s hard to separate the friends you know and the public officials they have become. Then again, Justice Kavanaugh served as a guest judge at my high school moot court competition shortly before his nomination. As you know, I won’t back down.
As we look forward to the next election, it is important to repeat the lessons that have not yet been learned. Supreme Court vacancies are rare. When making decisions about who to select, we must rely on a complete understanding of a person’s past practice and predict that person’s likely trajectory. Once a nomination is made, we should evaluate the decision candidly and carefully.
