US Lawyer dopers; US Supreme Court Justices

As a lawyer trained in another common law legal system (England and Wales), I am often bemused by the selection and workings of US Supreme Court Justices. Its a highly political exercise, as opposed to what is the case in many countries, where often its a senior judge who gets elevated to what is the higest court in the land, (House of Lords in the UK).
The question is
Do you think, from a purely legal point of view that has the political nature of the process harmed or helped the system, with judges being selected purely on the basis of what their personal rather than legal opinions are?

Looking at US Supreme Court Justices, one I think Scalia is brilliant, you may not agree with his opinions and tresties , but they are argued in a manner which is of a very high quality. On the other hand, with Thomas and Ginsberg, you shake your head and wonder, its almost as if they have come to a decision before hand and then try to cherrypick reasons to justify it, good practice for a trial lawyer perhaps, not so much for a judge.

It is a politicized process, to be sure, and has become much more so since the late 1980s, as the Supreme Court has become the forum where virtually every major social and legal issue eventually ends up. But there has rarely, if ever, been purely merit- or seniority-based selection of Federal judges. Even George Washington picked judges based on a combination of merit, congenial political views, and geography (he thought they should be chosen from across the country to help bind the states more closely to the infant Union). His successors have done much the same.

If you’re interested in the subject, I highly recommend Jeffrey Toobin’s recent book The Nine, which is an excellent overview of the Supreme Court of the two decades or so, and a very readable mix of law, politics, history and gossip. Toobin writes quite a bit about how Clinton and both Bushes went about picking Supreme Court justices. As with any process involving human beings, sometimes it works well, and sometimes it doesn’t. It’s not a perfect system, and never will be.

I will also respectfully take issue with your appraisal of Justice Ruth Bader Ginsburg and offer a word of support here for her, as I believe she’s a principled, well-informed and fair jurist, not just results-oriented.

It’s a tough question to answer because I don’t have much experience with opinions from outside the U.S. But it’s hard to imagine that mere seniority would get as whip-smart a pool of judges on our highest court than we typically have these days. I haven’t read a lot of Thomas, but I think you’re wrong about Ginsberg. She isn’t dumb, she just refuses to embrace the sterility of the judicial philosophy suggested by Scalia. He I agree is a fucking genius. But much of his genius comes in writing eloquently enough to convince even the educated reader that he’s making sense when he’s actually pulling the wool over your eyes by adding new elements to analysis or making outrageous claims sound like common sense. Breyer as a judge simply dispenses with the whole notion – he surveys the facts, decides if they lead to a good outcome or not, and if they do, he says he thinks it’s fine. Again, that’s a kind of reasoning that is wholly inconsonant with the kind of thing justices are supposed to do. But it’s not a matter of him being impaired, it’s a difference of philosophy. Indeed, I think it’s a product of both the politicization of the process and that it’s a meritocracy that we end up having these sort of rarefied arguments on the legitimacy of certain modes of legal thought play out on the ground, instead of merely in the acedemy. I wouldn’t expect that same quality of analysis from judges whose primary qualification was tenure. Of course, if you’re one of the litigants in the case, you’d probably just as soon settle for something more workmanlike, so I don’t know if this is ultimately a pro or a con.


I think a discussion of this kind is better suited for Great Debates than GQ.

General Questions Moderator

I agree he is brilliant. I also agree he hoodwinks the rest of us so I especially despise him. I personally find textualism to be bogus and a cop out and have noted here on the Boards before that Scalia seems to only hold to that if convenient (I should note that others here defended him and that he held to his philosophies but I found the reasoning tortured).

To the OP I agree making the SCOTUS political is a problem. As noted it has always, to some extent, been this way. However, lately I think they have put more ideologues on the bench who have pre-conceived notions and bend the law to fit their political views. I’d like to think that the SCOTUS is the last bastion in the government that is not politicized but alas it too has succumbed.

I’m surprised a UK lawyer would single out Scalia as the best SCOTUS justice.

It’s true that Scalia is a formidable intellect, who writes clearly and well. It’s also true that he typically draws on very high quality legislative historical research. But apart from that he engages in just as much means-end judgements as anyone - reading down states rights or reading up federalism when it suits. I don’t think his Originalist position is tenable, his support of deep deference to executive CiC power to be dangerous, and I find his reactionary and reflexive opposition to citing international law and comparative jurisprudence, despite it being non-controlling only persuasive, to be antithetical to the very idea of what good justices ought to do.

Given the way jurisprudence works in Commonwealth countries, where cross-pollination is common place and expected, I’m surprised you don’t find his pugnacious non-comparativism to be somewhat repulsive.

He’s also the only one who uses petulant dissents, where he deliberately omits respectfully from his judgement, and his comment that the Boumediene decision would “cost American lives” seemed pretty clearly a case of throwing up a red-meat to the base prior to an election. I find that level of hysterics and politicisation, even with his son in the war, to be quite unbecoming for a Justice sitting on the highest court in the land.

I suspect that one reason the Supreme Court seems more politicized than the Law Lords is because, for good or ill, the S.Ct. has considerably more political power.

In the UK, Parliament is supreme and can override any judicial decision (right?). Over here, the S.Ct. is the final arbiter of the meaning of the US Constitution, and whether or not a decision is intended to be political, its effects often can be.

I think you mean to say, “on the basis of what their political rather than legal opinions are.” Crucial distinction – because the law can be separated from the private sphere and personal world-view and matters of faith and conscience, etc., but never from politics as such.

I am obvioulsy not as up to date as US lawyers on the justices. As a lawyer trained in English law (there is except for employment and immigration , no such thing as a UK lawyer), I can sympathise alot with many of Justice Scalia’s sentiments, I believe in not reading things into statutes or constitutional texts which are not there. His non-comparitivism, is firstly overstated, he has cited foreign judgements in the past, and constitutional issues is not an area where comparitivism is appropriate as far as I am concerned, which as a Supreme Court judge he is going to be dealing with mostly. His argument that the US was not a common law country was tenous, but it is true the US split from the Great Britain, before what we recognise as English common law was finalised (1873, judicature acts), though the fact is US courts adopted pretty much the same approach to all questions that arose in the meantime. And the common law world tends to follow pretty much the same broad tendancies, whether or not they admit it (duty of care in tort was developed pretty much jointly by Cardozo in the US and Atkin in the UK, with the Buick Motor and Donaghue cases respectivly, Atkin cited Cardozo), and I have come across Headly Byrne v Heller and the High Trees case in quite a few US casebooks and judgements.

From the English Point of view, the justices that get the most attention are Scalia, he is brilliant and his arguements are well reasoned and researched, something English jurists love, and Thomas and Ginsberg, get the worst treatment, they are considered idelouges.

Perhaps it is unfair to judge (pun!) considering there are different standards and ideals.

Yes that could be true. Parliament is supreme* and no judge can go against statute. Howeverm judges are generally conservative and give narrow readings to statutes. Which has been of cruicial importance in the past few years, as Statutes have abolished many common law rules. To take one example, for three hundred years, a care warning has always been given for evidence in sexual offence cases where identification or a “he said she said” issue arises, by the judge to the jury, to the effect off, “you should be vary of convicting on one uncorroberated piece of evidence”. Was abolished by the CJPOA 1994, the judge immdietly came up with a new case called Makenjoula, where they interpreted the new law in such a way, that a warning was preserved, and actually extended to all cases. And recently after the Criminal Justice Act 2003 allowed for previous convictons to be adduced as evidence in court, the Court of Appeal just a few days ago pretty much made that section redundant, in R v Campbell, by interpreting the section narrowly.

  • Human Rights Act requires judges to interpret all statutes to be in conformity with the European Convention on Human Rights.

No and I can’t tell you how frustrating it is to hear elected officials talk about the need to inject “fairness” into the law. The law is neither fair or unfair it just is the law. The equal protection and application of the law is the bedrock on which orderly societies are built.

The United States Senate set a horrible precedent in 1986 when they rejected the appointment of Robert Bork. In that decision they admitted Bork to be a capable and distinguished legal expert but rejected his ideology. In that move they forever changed the practice of deciding if someone was capable and instead asked if he/she believed in a particular ideology.

Scalia’s dissent in PGA Tour, Inc. v. Martin is my favorite opinion from him.

For those of you who forgot, Casey Martin was the golfer with the degenerative condition in his leg that required him to use a golf cart.

I can’t agree with that. The law is supposed to be fair. Constitutional law, on the other hand, only has to be constitutional.

I disagree, the law is the law. It must be followed. There are ways to change the law or to inject fairness into it, the judiciary is not that vehical.

Do you not have Courts of Chancery?

I reckon that’s a specious and unhelpful comment, which just refers, tautologically, to the fact that you want justices to bring to bear certain legalist values. That is, that you prefer a conservative type of more formalist textual judicial minimalism - which would be a more intellectually honest description (though I don’t think Scalia embodies this tradition in any event).

The law is complex, and exactly where a justice stands on equity jurisprudence, constitutional jurisprudence, etc., is matter of the different values, intellectual skills sets, which can vary for an individual justice. Some judges are just better at certain domains of legal thinking, and weighing processes, and worse at others. You cannot reduce jurisprudential merit down to" applying the law" without engaging in a giant strawman and a variety of category mistakes.

I think Justice Michael Kirby of the High Court of the Australia has a very good description of the hollowness of the whole “Activist Judges” talking point here:

as well as this interview:

Yes and no. No in that Judicature Acts of 1873 and 1875 abolished the disticntion between common law and equity courts. Yes in that there is still a Chancery division in the high courts. Yes, in that equitable remedies are still available. No in that, case law has set pretty rigid precedents as to when such remedies can be granted.

I admire Kirby J and his opinions, but with respect that view is bunk. In a common law system, judges apply law, they do not create it. Its not protestant, or catholic or white or black or french or muslim. In all common law countries that is the case, be it the UK and its constituent countries (sans Scotland), the US, Canada or even non-white and non-prostestant countries who are also common law, like say India or Pakistan or Malaysia.

The very definition of a common law system is one of judge-made law. Stare decisis provides an important limitation on the ability of judges to “make” law, but judges aren’t robots who sit on the bench and strictly regurgitate the law, and the law itself couldn’t possibly contain the precise legal answer to every conceivable problem. Shoot, many laws are very broadly written to allow for flexible judicial interpretation.

And stare decisis; means; stand by the decided cases. Case law is law as well. There is a big difference between following common law that has developed over centuries and making a decison that feels “fair”.