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The Last 100 Years of The Supreme Court

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So, the census is upon us again.  It’s a time that many people, whether foLast 100 years Supreme Courtr work or leisure, take the time to reflect on where we’ve been and where we’re going.  Since the 1910 census a century ago, American society has changed drastically.  Our population has ballooned by 200%, and we’ve suffered through dozens of wars and societal transformations.  Many cities have been rebuilt out of whole cloth, and most of the ancestors of people now living in the U.S. were then living in other countries.  Still, the largest professions today were about the same as they were a hundred years ago, in name at least.  In practicality however, selling a cell phone is a lot different than selling a fur hat.  And with all this change, it’s certain that what the framers of the constitution thought of judges and lawyers is vastly different than what they have come to be today.  And yet, our legal system continues to work the same way.

Or does it?  Just look at the highest judicial authority in the land, the Supreme Court.  This group of nine justices oversees a judicial system that has grown exponentially.  While originally set up to handle only the most controversial or difficult cases under the law, the Supreme Court received over 10,000 petitions in 2009.  This is a very stiff burden for a true “court of last resort” to handle.  In 1910, most people did not even know where to find a lawyer, but today the average person is more likely than not to be a party to a lawsuit at some point in life.

And as the legal system’s responsibilities have increased, so has the petty political infighting in judicial appointments.  In 1910, Republican president William Howard Taft saw through party differences enough to elevate Edward White to Chief Justice, who was both a Democrat and a former Confederate soldier.  And the senate at the time thought that its duty to affirm the appointments of new associate justices was in place to prevent incompetence, not press a political agenda.  Today, judge Sotomayor’s confirmation was almost exclusively along party lines.  And well, just about everything George W. Bush did during his second term was put to heavy scrutiny, including his judicial appointments.  At the butt of the joke is a field of professionals who have committed themselves to being above the cracker-barrel, misleading political ideologies.

But the rise in the quality of medical care has perhaps presented the greatest change to the Supreme Court dynamics.  Justices today are living longer, fighting fewer gentlemen’s duels, and just generally remaining productive far later in life.  Justice Stevens is 89 years old, and although older justices have sometimes been criticized for their diminished mental faculties in the past (one even tried to commit suicide), there was a longstanding tone of passive respect for public officials in earlier eras.  The same respect has not survived the century.  Surrounded by a retinue to assist him, some have even questioned whether Stevens’ written opinions on the Court’s cases are, in fact, written by his young, inexperienced legal clerks.  This would be a serious ethical violation, and the accusation is one stark indication of a political group that wants Stevens to retire so that Obama can fill the vacancy with an ostensibly more liberal justice.  Others perceive the issue of age as something more systematic.  They have discussed an amendment to the constitution that sets term limits for justices, whether through a mandatory retirement age or by defining a specific number of years that an appointment would last.

And if the Supreme Court is oddly criticized for excessive productivity, it can be imagined what is happening within the legal world as a whole.  Certainly, the profession has done much better with producing qualified lawyers and judges than it has at actually finding needful roles for them to fulfill.  Unemployment for lawyers at the entry level is at an all time high.  Meanwhile, cases are taking longer to conclude, there are more of them, and decisions are appealed much more often.  So in many ways, the legal field has changed in the same way others have.  It is spurred to be more and more productive, while from all sides the costs are expected to be kept low.  To all the overworked, underappreciated justices of the Supreme Court, we feel your pain.

Ken LaMance


  • JR

    I have to disagree with one of your minor points:

    You write, “Surrounded by a retinue to assist him, some have even questioned whether Stevens’ written opinions on the Court’s cases are, in fact, written by his young, inexperienced legal clerks. This would be a serious ethical violation…”

    I fail to see the ethical violation that this represents. So long as his is the name that is affixed to the opinion, and so long as he agrees with the substance of the opinion, then having a clerk write it is functionally no different than joining another Justice’s written opinion. Indeed, it’s hardly a secret that many opinions are largely (if not entirely) written by clerks and merely edited (often with a very light hand) by Justices. In fact, one of the most influential dissents of the last 30 years, that of Justice Blackmun in Bowers v. Hardwick (which later formed the basis of the majority opinion overturning Bowers in Lawrence v. Texas) was written mostly by his then-clerk Pamela Karlan.

    It’s not even so far-fetched to think that a clerk will occasionally be better versed in a complex area of the law than the Justice for whom he or she works. The Justices tend to be exceptional legal minds with extensive knowledge, but it’s unrealistic to assume they’re fully informed about the intricacies of every area of law for which cert is granted–if that were required, I’d wager some legal subjects would never get four votes in committee!

    So was Blackmun guilty of a “serious ethical violation” in signing off on Karlan’s work (which turned out to be of such high quality that it resulted in overturning the case within a few decades)? Or perhaps is the practice of clerk-written opinions something to be accepted and embraced, so long as it is the Justice who has final say as to what is signed or joined? Personally, I tend toward the latter view.

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