WHY TODAY’S SUPREME COURT OFTEN DOESN’T “GET IT”
IT’S NOT NECESSARILY BECAUSE THEY ARE MAJORITY CONSERVATIVE
If you were as appalled by the Supreme Court’s decision in the Hobby Lobby case as I was, you might conclude that the decision was a reflection of the Court’s “conservative” bias these days. As we predicted, the Hobby Lobby decision has given rise to all sorts discriminatory legislative acts disguised as laws purportedly upholding “closely held religious beliefs.” Last week’s hearing of the same-sex marriage cases will probably put an end to the uncertainty over this issue, but who knows how the Justices will decide? That the Supreme Court tends to lean conservative is unarguable even though every single one of the Justices has attended Yale or Harvard. Used to be that Yale and Harvard were considered pinnacles of enlightened social policy and liberal thinking, so what happened? Recent Supreme Court decisions have invented rights for corporations and gutted protections for women, minorities and ordinary workers while expanding religious discrimination. Not exactly in the liberal tradition. Ironically at first glance, the 2015 Court is more diverse than it has ever been: three women, the first Hispanic Justice, six Catholics, three Jews, one Black and two Italian Americans. So what’s the deal?
While the ethnic, racial, sexual and cultural composition of the Court is much more reflective of the America it serves today, the backgrounds of the Supremes is much less diverse than it has been in the past. Every sitting Justice has emerged from the legal world with nary a side trip to temper the life lessons imparted by the world of law. Not a single one of our current crop of Justices has ever held elective office, none have served as a Cabinet head, none served as legal clinic advisors, none were capital defense attorneys and none served in the military as have former Justices. A recent New Republic article points out that every one of the nine Justices today are the products of that straight jacket called the legal system – former judges, prosecutors, law professors, corporate attorneys – a situation in the makeup of the Court that, until recently, had never been the case. Back when Brown vs. Board of Education was heard, the 1954 case that reversed the Court’s previous 1896 ruling in Plessy vs. Ferguson, the Court had five members who had held elective office. Former Justices have typically included known alcoholics, businessmen, educators, government officials and, if you go back far, enough even farmers.
There is today, as the New Republic article points out, no Justice from the Heartland. No former alcoholics, no former party bosses, no Justices from the world of business as there once were which might go far in explaining the Citizen’s United decision. Or the Hobby Lobby decision. Today’s Supreme Court Justices seem to have emerged from a well defined mold straight to their current seats: intellectually superior, steeped in legal theory, not too obviously ideological, no overt political advocacy and a track record of judicial decisions sufficient to deduce future leanings and decisions. The nomination process today allows only a special breed of Justice: elite school attendance (Harvard or Yale), elite judicial clerkships, elite federal judgeships and there you have it.
So given the “requirements” today to be nominated and affirmed for a seat on the Supreme Court, there is an almost complete lack of real world experience outside the legal bubble. No settling of multi-national corporate disputes or disputes between citizens and corporations. No legal defense of the poor and indigent. No front line battles, legal or otherwise, over civil rights, the environment, abortion, religion or any of the other important issues the country faces. Given the lack of this kind of real world experience, is it then so unimaginable that the Justices would decide that corporations have the same rights as people like you and me? That a thirty-five foot buffer around abortion clinics is tantamount to denying pro-life protesters their freedom of speech? That the closely held religious beliefs of a corporate owners trump the reproductive rights of women? Surprising? No. The Justices no longer have the remotest personal connections with these kinds of issues, the kinds of issues that ordinary folks often find themselves enmeshed and engaged in.
So it’s not just that the Supreme Court is more conservative than it used to be. It’s that it is more narrow in its collective life experiences than it used to be. No matter how “objective” anyone is, one’s real world experiences do color a person’s outlook and must color their decisions as well, to some lesser or greater degree. It’s clear to me – I would bet my entire 401(k) balance on this - that none of the Supremes who decided that the Massachusetts 35 foot buffer zone around abortion clinics was unconstitutional have never been to an abortion clinic as folks walking down the sidewalk are being harassed. I have and I certainly have no idea why the vicious voices of these pro-life-until-it’s-born ignoramuses need any additional protections. They don’t. Their voices are loud, clear and disgusting.
I’m sure that most of us know attorneys, or we’ve had experiences in the legal world and are familiar with how narrow and often incomprehensible the legal world can be. It’s not life. It may be a slice of life but a very narrow one. If you’re like me, I stay as far away as possible from anything to do with the law. That’s part of my life perspective. This is why we have such un-believable decisions from this court. Molded by a system that is insular and exclusive, the Justices have scant life experiences outside this constrained legal world to inform their opinions and their decisions.