Howard Zinn in his PEOPLE’S HISTORY OF THE UNITED STATES pretty uniformly makes an ideological case against the long-standing rapacious control of the country by the business interests. Without getting into Zinn’s biases, he makes one point that I don’t really understand. On page 260 of the Perennial Classics 2001 paperback edition, he excoriates the Supreme Court for being biased towards the ruling-class interests because “its members were often former wealthy lawyers, and almost always came from the upper class.”
Is there a way for a Supreme Court to be composed otherwise? Don’t we want lawyers who are good at what they do, and consequently successful and wealthy to be serving on our courts? Wouldn’t most lawyers able to serve in a lifetime judical role be rather wealthy already? Don’t we want justices to be chosen from the ranks of the judiciary?
Zinn moves on from this polemical position without detailing what, exactly, his complaint is, or suggesting an alternative method of selecting Supreme Court justices, but I’m wondering if any system of choosing judges other than the politicized system we’ve always had has been proposed. Is there a way to choose judges who are both qualified to serve and, somehow, not tainted by their own success, that would satisfy people like Zinn, or this just a pointless complaint?
It strikes me as a pointless complaint based on a false premise, that idea that a wealthy judge will rule in favor of the wealthy. William O. Douglas was the chairman of the SEC before becoming a Supreme Court justice. I don’t think his record reflects a bias toward the “ruling class”.
I agree with Crotalus. From Holmes to Souter, Justices have a way of abiding by their oath to interpret the law fairly and in accordance with the Constitution that defeats any ideological expectations of their appointing Presidents and ratifying Senates.
Take for example the conservative Republican Governor of California, formerly an Attorney General who had been the moving force behind one of the most racist acts in American history, whose nomination to the Court was a payoff by the President for the Governor’s support at the convention that nominated him. Everyone is aware of how conservative Chief Justice Earl Warren turned out to be!
Zinn’s premise, though, is hard to refute: in the 19th century, particularly, the Supreme Court ruled that businesses could get away with pretty much anything they liked, and they were comprised of wealthy lawyers for the most part.
Now, it was true that Republicans were appointing the justices pretty exclusively for the last half of the century, and the Democrats (Cleveland) had similar policies anyway, and there wasn’t a lot of anti-business legislation for the Supremes to rule on, but they did seem eager from our perspective to interpret the Constitution in an especially bloody way, concentrating a good deal of repulsive (from our enlightened perspective) power in the laissez-faire practices of the Robber Barons of the day.
Right. But you’re looking at a range of approximately 1870-1901, when the country as a whole was largely pro-business to a high degree. (Another period from ca. 1922-1930, and sporadically thereafter until 1937.) And you’re looking specifically at business-related legislation.
What’s being argued against that is that by and large, successful lawyers stood by their commitment to the law, to honor their oaths to interpret the Constitution according to their individual understandings of the principles enshrined in it and the methodology by which it “should” be interpreted. While these vary greatly, they do not, by and large, correspond to what Zinn suggests, other than the era of conservative substantive due process and freedom of contract.
It’s certainly fashionable to view, in retrospect, the internment of the Japanese in World War II. It’s important to note that during the 1939 - 1942 period the war was in some doubt, and while it seems inevitable or obvious today that the allies would prevail there was certainly no assurance this would be the case; it was simply a matter of being proactive rather than reactive.
I think we also don’t really have a “ruling class” in this country (at least not at the very top). Many of the people leading this country were born in humble circumstances.
Exactly how many members of Congress belong to this alleged ruling class? And let’s not count the ones of humble origins who joined it. Any kind of ruling class that allows people of humble origin to join it is no ruling class worthy of the name.
Even the feudal aristocrats had means by which people could join the aristos. Few, few, people of course. Then again, social mobility in the US between the upper class and the middle class isn’t exactly moving at a fast pace, either. More like a snail’s pace. But they’re obviously not a ruling class, because they don’t have crowns or anything like that!
Zinn aside, this problem just manifests that of a republic in general, where we ask people to represent “the people”–we can sneak some populist types into the legislature and the executive branch perhaps, sometimes, but how many representatives of “the people” are you likely to find if you’re searching among the top 1% of lawyers and judges? Not many. OTOH, isn’t that who we want to be serving on the Supreme Court?
The Hruska-esque argument that mediocre people deserve representation, too, is widely discredited, but mediocrities like Miers and Thomas still get nominated and sometimes appointed to serve–somehow, I don’t think this trend would satisfy Zinn in overthrowing the appointment of the elite to the federal bench.
I think there is something to Zinn’s charges, but I don’t think the problem is one of mediocrity or excellence, it’s one of class. And it’s not a matter of a person of a higher class making decisions that benefit his fellows out of medacity. It’s more a matter of, if you bring in people from the upper class exclusively, they will retain the experiences, culture, prejudices, etc., of their class and not be able to relate to people who have to save up to buy a $100 TV set and get all excited about it, or for whom a $50 monthly car insurance payment is quite a burden.
Even appointing a middle class or lower class person who has come up through the ranks – like Clarence Thomas – doesn’t always solve the problem. If that person has adopted upper class mores as their own as part of their drive to succeed, they will often be even less of a friend to their own class than others are, as they will also tend to reject their origins.
What you need is a lower or middle class person who is still comfortable with his or her origins while having the drive to get to the upper classes. Such persons are rare. Next best bet is someone from the upper classes with sufficient intelligence and imagination to understand what it might be like to be lower class or middle class. Such persons are also rare.
