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Glenn Harlan Reynolds, aka the Instapundit, discussed his new Encounter Broadside The Judiciary’s Class War with our own Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity.
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Ben Weingarten: The premise of The Judiciary’s Class War as I see it is that there’s this “Front-Row” versus “Back-Row” kids split that’s going on in American society that you write about, and that’s manifesting itself in the courts as you view it in a detrimental fashion. Speak a little bit to the “Front-Row” versus “Back-Row” kids split.
Glenn Harlan Reynolds: Sure. Well, that’s actually a characterization from a guy named Chris Arnade; he’s a former Wall Street guy turned photographer of the poor and dispossessed. And he divides America basically into the “Front-Row Kids” and the “Back-Row Kids.” And the Front-Row Kids are the ones who did well in school. They have professional and managerial type jobs. They look for their values to academia and to their membership in sort of a global educated professional class. And the Back-Row Kids are the ones who aren’t like that, the people who didn’t succeed as well in school, who have jobs that are not professional or managerial, people who look to their values foremost to church and to their community, and tend not to move too far away from where they live.
It's frankly sort of absurd that the Supreme Court decides a lot of the questions that it does often, essentially as a first instance rather than after just saying Congress tried and got it wrong. And I think that when it does so, it brings to it the instincts of the elite bar.
Ben Weingarten: As you see it with respect to the courts, is the broader issue negatively impacting the nation the judicial philosophy of the justices or their class background — or would you say that the two are inextricably intertwined?
Glenn Harlan Reynolds: Oh, I think the two are inextricably intertwined. I mean, look, if you are a Back-Row voter, you can vote for somebody like, say, Scott Walker. He’s the governor of Wisconsin. He never graduated from college. Nobody gets to serve, in our world at least, in the judiciary, who doesn’t have an actual post-graduate degree, not just a college degree but a law degree. And these are not just people with law degrees. These are people with elite law degrees. Everybody on the Supreme Court got their degree from Harvard or Yale except for Ruth Bader Ginsburg who came in representing that scrappy little Ivy League upstart, Columbia University. So, they’re going to have and do have the values, the outlook, the philosophy and the life habits of Ivy League educated people who are very successful and have a decent amount of money. And all the issues they look at get strained through that. Now sometimes they can overcome that kind of bias and sometimes they can’t, but it’s always there. And I think it’s not even very much examined because it’s not just a left/right thing. It’s much more pervasive than that.
Ben Weingarten: And to that point, I think one of the most critical arguments in your book is this one, and I’ll quote here. You write, ” If the federal courts, and the Supreme Court in particular, were solely focused on technical legal questions, the dramatic gap between the backgrounds and class identities of the judiciary and those of Americans in general would be less significant. But since the mid-twentieth century, the federal courts have become, in essence, our nation’s moral umpire when it comes to the pressing social questions of the day. This use of the courts itself reflects a Front Row approach, removing decisions from the masses and placing them in the hands of educated elites.” Elaborate on that.
Glenn Harlan Reynolds: Well, it’s pretty much what it sounds like. [The] Supreme Court was originally — it was always an important body — but it was not an especially super important body until well into the 20th century, when more and more important questions started winding up there and being resolved there rather than in the political branches. And this was partly a desire of the political branches to kick the football to somebody else who didn’t have to run for re-election, and also partly willingness of the court I think to take on a sort of Platonic guardian role and seeing itself sort of specially qualified to decide issues like this. And that’s, I think all bound up with the sort of elitism and scientism that mid-century progressivism had. And I think that we see that in a lot of areas now. It’s frankly sort of absurd that the Supreme Court decides a lot of the questions that it does often, essentially as a first instance rather than after just saying Congress tried and got it wrong. And I think that when it does so, it brings to it the instincts of the elite bar. And the elite bar is a group of people who tend to lean socially left, certainly. But as I say, it’s a matter of manners, and mores that go sort of beyond left and right.
Ben Weingarten: There’s also an element of this, which is a little bit self-serving. You talk about the impact of a case Goldberg v. Kelly, where essentially the lawyers were fighting for a decision putatively about helping those who are on welfare, but in reality, it was sort of a wealth redistribution scheme for lawyers. Speak a little bit about that case.
Glenn Harlan Reynolds: Yeah. So, when I was in law school Goldberg v. Kelly was still held up as one of the greatest Supreme Court decisions ever, so much so that it got praise even in my admiralty class. And yes, I mean literally really, even in my admiralty class. So, what happened in Goldberg v. Kelly was it was part of the broader welfare rights movement of the ‘60s. And previously, if you were on welfare and the caseworker in charge of your case decided that you were eligible, you’d be kicked off. And you were eligible to come back and appeal and have your benefits reinstated if you could show that you were entitled. What happened in Goldberg was the Supreme Court said, “No, you have an actual Constitutional right to have notice and a hearing before they can take away your welfare benefits.” Previously, the courts had said, “Welfare benefits are ex gratia”, a gratuity, a something it’s nice if the state gives it to you, but they don’t create any entitlement. Goldberg is really where the term “entitlement” comes from, pretty much. And in Goldberg the Court said “No, you have a property right in your welfare benefits, and so the state can’t take away this property right without giving you notice and a hearing.” Well, that sounds great, and my professors loved it. And more due process is always better, right? Well it is if you’re a lawyer, ’cause lawyers get paid to do that stuff.
But in a welfare organization, there’s basically a fixed pot of money. It’s not likely that the taxpayers are going to say, “Well, we were gonna give $10 billion to this welfare program, but now that they’re going to have due process hearings, we’ll give them an extra billion dollars to cover those.” It’s pretty likely that the taxpayers aren’t going to give them any more, and so what’s going to happen is, out of that fixed pot of welfare money, some significant chunk that used to go to poor people who the authorities thought deserved it, is now going to go to a mixture of poor people the authorities think don’t deserve it, and more importantly, to the lawyers and the social workers and the stenographers and so on, who provide those due process hearings.
Ben Weingarten: How does Reynolds v. Sims factor into your thesis?
Glenn Harlan Reynolds: Yeah, they do. First of all, the ‘Reynolds’ in Reynolds v. Sims, there’s no relation, at least as far as I know. So many states, for a long time, had their state legislatures, both a lower house and an upper house, apportion according to state rules. And there were two issues that came before the court there. One, on which the states were clearly wrong, was the refusal of states to actually update their apportionment maps as their own state constitutions required…Another was their failure to make sure that all the districts had equal numbers of people in them so that some districts didn’t dilute people’s votes relative to others, or concentrate people’s votes relative to others. One of the things that means is that states that had an analogue to the United States Senate, the geographic districts, were forced to redo those by population. And the effect of that was to take power away from rural areas and give it to concentrated urban areas, which not surprisingly, are where the Front-Row Kids’ power is the greatest. And I frankly think that was not unintentional. There was sort of a war against rural America in a lot of legal aspects of the ‘50s and ‘60s and ‘70s, and I think this is best understood as part of that.
Ben Weingarten: Now, an interesting point, and you sort of alluded to this in the broadside, is Justice Thomas’s perspective on who he chooses to be his clerks and staffers. What in your view does it say about Justice Thomas and about your thesis more broadly that the most natural law-oriented judge on the court, on the Supreme Court, advocates for folks essentially from the heartland to be on his staff over Ivy Leaguers solely?
Glenn Harlan Reynolds: Well, it’s funny, first of all…and I think Thomas has said this too, and I know Scalia has made this point, that the Supreme Court itself, of course, doesn’t represent the heartland. It’s people who are mostly from the coast and they’re elite educated, it’s very much the Front-Row Kids’ argument, really. It is definitely made worse by the fact that if you look at the court as a whole, the vast majority of their clerks come from Ivy League schools, with just a sprinkling from some other places, which means that…In theory, one of the virtues of law clerks is that the judges get exposed to new ideas from new people every year and their chambers don’t get too incestuous. But when you’re in fact recruiting your law clerks from a small number of schools — and typically, Supreme Court clerks are recruited through a fairly small network of feeder judges in the Courts of Appeals who send a disproportionate number of people to the Supreme Court, and those feeder judges tend to hire their clerks based on the recommendations of a relatively small number of Ivy League law professors — so it’s pretty incestuous, actually, the way it’s really done. And Justice Thomas does make an effort of trying to broaden his focus and his chambers, but it would be nice if the court as a whole did a little more of that.
There was sort of a war against rural America in a lot of legal aspects of the ‘50s and ‘60s and ‘70s
Ben Weingarten: I suspect that a liberal critic will pick up this broadside and contend that President Obama chose his justices in some cases, not solely on an Ivy League, elitist basis. He chose, for example, Justice Sotomayor on the basis of her “empathy.” He was seeking out a “wise Latina,” and he’d probably argue that she was a Back-Row Kid, if we’re sticking in that sort of formulation. How would you respond to that critique?
Glenn Harlan Reynolds: And where’d she go to law school?
Ben Weingarten: She did go to an Ivy League law school [Yale], that’s for sure.
Glenn Harlan Reynolds: Yeah, she’s not coming from Wayne State. She’s not coming from Kansas or Pepperdine, and…Look, law school is designed — and has been ever since Christopher Columbus Langdell invented the modern law school in the second half of the 19th century — it’s been designed to teach people to, “think like a lawyer.” And law schools, to a better or worse degree, do that. Ivy League schools teach people to think not just like a lawyer, but like a very particular kind of lawyer, with the approach of the big Wall Street law firms and D.C. law firms and such, with a certain set of social values; the Ivy League law schools tend to be much more liberal, even than law schools in general. And it’s sort of hard to describe, just a sort of clubby-ness, and clannishness that’s really, only to be found in the top Ivy league law schools. So I think somebody with that background, it’s not impossible for them to transcend that, but it’s certainly not the way to bet.
Ben Weingarten: Walk us through your proposals for remedying this problem.
Glenn Harlan Reynolds: Well, I offer a few, and they range from the extreme to the not so extreme. At the most extreme end, we can amend the Constitution to provide for the election of Supreme Court justices. Now that would horrify some people, but honestly, it’s gotten to the point where our presidential elections turn substantially on who’s going to be nominated to the Supreme Court. And even our Senate elections, to no small degree turn on who’s going to be confirmed to the Supreme Court. So by not electing Supreme Court justices, at one level we’re sort of corrupting a lot of other races, or at least distracting them.
And second of all, the appointing system — I’m not sure it’s any less political. It’s just not quite as transparent. And it’s certainly true that an elected system would require candidates for the Supreme Court to be more sensitive to what non-elite voters think, because those non-elite voters are voters. And I think that would not be such a bad thing. And many states have elected State Supreme Courts, and although they get criticized, they work fine. And it’s not as if political appointments are non-political, because they certainly are not.
So, that’s one proposal. Now, that would require a constitutional amendment, and I don’t really see that as being very likely to happen. I just put it out more in line of a thought experiment. Something you could do without changing the Constitution is to appoint non-lawyers to the Supreme Court. There’s absolutely nothing in the Supreme Court that suggests at all that members of the Supreme Court have to be people with law degrees or law licenses, or even who attended law school. In fact, law school hadn’t actually been invented at the time the Constitution was drafted. So, that would be one answer. And there are many…In colonial times, we had lay judges who weren’t lawyers. There are a number of countries out there in the world that have lay judges on their highest courts right now. And I understand that in the Reagan era they actually looked at appointing Thomas Sowell to the Supreme Court, and decided that the non-lawyer angle was just going to create too much hassle for them. Though, I think that’s kind of too bad that didn’t happen.
Ivy League schools teach people to think not just like a lawyer, but like a very particular kind of lawyer, with the approach of the big Wall Street law firms and D.C. law firms and such, with a certain set of social values
Ben Weingarten: Yeah, if only we could’ve been so lucky.
Glenn Harlan Reynolds: So, I guess he would’ve had the Anthony Kennedy seat. And I think I could be forgiven for saying that that would’ve probably been a better deal. But certainly, that’s a possibility. And then, moving down to an even less extreme approach, I think we should maybe try to pick people other than what Dahlia Lithwick, the legal journalist, refers to as “judicial thoroughbreds,” which is basically people with a biography of…Everybody on the court now, these are all people who went to an Ivy League law school, were prestigious appellate clerks or Supreme Court clerks themselves, went through academia and the appellate courts, maybe had a brief period practicing at some white shoe, fancy law firm, but not for too long, and now they’ve got this super-perfect resume, and they haven’t said very much too controversial, and then they’re put on the Court.
And there’s nothing wrong with these people. I mean by definition, they’re pretty smart, but they’re fairly narrow. And as Dahlia Lithwick pointed out, the court that decided Brown [v. Board of Education] had a bunch of people on it who had been politicians, who had been criminal prosecutors, who had been elected officials. And I think that having people on there with that kind of an experience wouldn’t be so bad. And it can’t be the case that there aren’t first rate people who have these backgrounds, first rate people who didn’t go to an Ivy League law school, first rate people who actually have practiced law with real clients for an extended period, are out there. There absolutely are.
And one other suggestion that I make is that perhaps when you’re looking to appoint judges to the court, that we should look at State Supreme Court Justices, especially those who’ve had to run for election in their states, because that experience is likely to broaden their perspective considerably compared to somebody who’s always just been appointed to the jobs they’ve held.
Ben Weingarten: Why based on your study does the Supreme Court no longer consist of any former politicians? Is that merely a function of the politicization and bipolarity of the confirmation process at this point? What’s your explanation?
Glenn Harlan Reynolds: Well, no, I think there are two or three things here: One is, you have to have this gold-plated resume, and relatively, few politicians have that gold-plated resume. Some do, but the majority of them don’t. Secondarily, we’re putting people on the court a lot younger now. And it used to be we put people on the court when their political career was sort of over. I mean Earl Warren had been Governor of California for two terms and he had tried to run for president and failed, and he’s rumored to have been given the chief justiceship as part of a deal with Eisenhower actually to bring California over to his side of the convention. So, that’s one thing. But now we like to appoint people who are in their early 50s. And if you’re a politician in your early 50s, you probably think you’ve still got a lot of career ahead of you. So that’s not really something that you’re aiming for. And finally, we’re just so freaking credentialist nowadays that I think people want that gold-plated resume, and just see that as more important than actual experience. And that’s probably true of a lot of other jobs too.
Ben Weingarten: In terms of making the argument about election of Supreme Court judges, obviously one thing that we can do is look towards the impact of elected judges at state levels. I guess another point worth considering has to be that, at this point, the legislative branch at the federal level punts so many critical decisions to the court that you almost need justices that understand all the political considerations associated with those issues. So, in a sense, is that just basically another representation of the warping of our system by progressivism?
We're just so freaking credentialist nowadays that I think people want that gold-plated resume, and just see that as more important than actual experience. And that's probably true of a lot of other jobs too.
Glenn Harlan Reynolds: Oh, I would say yes. I think that’s…There’s a lot of that. I’m not actually a fan of James Bradley Thayer, who was a 19th century constitutional theorist, whose view was that the court should…He basically said the Supreme Court should almost never overturn laws even if they thought they were unconstitutional; they should defer to Congress. And I don’t agree with that all, but he did make one excellent point, which was, he said, “If the court gets in the habit of overturning laws on constitutionality, the likely outcome is that Congress itself will just quit worrying about whether what it passes is constitutional and leave that up to the court.” And that certainly has been what’s happened.
Ben Weingarten: Well, I guess the best that we can hope for is that someday, the administrative state really is deconstructed and then maybe this problem will solve itself.
Glenn Harlan Reynolds: Well, let’s hope.