I think it is terribly disappointing that we keep getting these Ivy League judges on the Supreme Court. Sure, Kagan has no "bench" experience, so in that aspect she is diverse. She is also female, which may be needed. But, she is still what at least 7 out of the other 8 are on the court: legal intellectuals. Frankly, I would have liked to have seen (and would like to see in the future) non-intellectuals grace the halls of the court again. There used to be a time when one did not have to go to an Ivy league law school to be on the court. Now, it is a prerequisite. And, I can't think of a nominee that would be a bigger intellectual than Kagan: law prof turned Harvard Law School Dean. But, I don't know the woman, so, maybe I'm wrong.

-- MatthewZorn - 13 May 2010

Matt - Can you explain a little more what you see as the problem with having ivy league or intellectual justices? Do you think that there's something wrong with having too many of any of one "type" or justice, or something wrong with a sort of blind adherence to a prerequisite of an ivy league degree - if that's what's happening - or maybe something else? If it's the former, what do you see as the downside of having this kind of a court?

-- JessicaHallett - 13 May 2010

I thought this article today in the Times was great. I liked this quote about Marshall's judicial philosophy which apparently Kagan didn't really buy (perhaps due to her very different background?):

But the case Justice Marshall cared about the most that year, she wrote, was the school bus dispute in which she had trouble justifying his dissent. The final draft seems to implicitly acknowledge that his vote rested less on legal doctrine than on his notion of social justice.

The case, it says, asked “whether a state may discriminate against the poor in providing access to education,” adding: “I regard this question as one of great urgency. As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.”

-- DevinMcDougall - 13 May 2010

@Devin, Thanks for linking the NYTimes article, it was a great read outlining the differences between Kagan and a legal giant. I think that one of the issues that many have with justices being drawn from the intelligentsia is that they view the law in a very technocratic way. The quote from Marshall that struck me was his explanation of jurisprudence as “You do what you think is right and let the law catch up.” Although every citizen will not agree with a justice's ideas of what is right, at least they will be able to understand the motivations and arguments that the High Court uses in validating or striking down laws. When assessment of the law is steeped in technocratic bullshit, it not only makes it difficult for American citizens to understand the issues at stake, it also (at least I believe) prevents the Court from understanding the ramifications of their decisions. Justices should certainly be intelligent and have strong academic credentials, but I think there is a legitimate fear that they are becoming 9 bureaucrats rather than 9 wise men (and women).

Also, anyone else wondering how many times Justice Marshall called Eben a "knucklehead?"

-- TaylorMcGowan - 13 May 2010

I suppose my feelings on this matter are largely colored by what I am reading now that has amplified my anti-intellectual streak. Again, I do not know Kagan personally and have not taken the time to read her law review articles. I will, however, go out on a limb and say that if she at any point served as the HLS dean, that my personal assessments of her and her method jurisprudence are probably not that far off.

I remember in high school in a class called "Theory of Knowledge" (a high school epistemology course) our teacher instructed us to rank the "7 ways of acquiring knowledge." I don't remember them all precisely, but, some of them were: empirical observation, faith, authority, intuition, and of course logic. Unsurprisingly, logic topped most lists or finished second to empiricism. Looking back, the whole exercise seems absurd. I wish I could go back in time to rehear my own justification of my list. Because, I cannot think of a logical reason that logic should be "1". In fact, what the exercise demonstrates is that intuition is an extremely high form of knowledge. At the meta level of the exercise, it is intuition which drives how we rank each form of knowledge against each other (alternatively empiricism, but certainly not logic). But I digress--

The point is, logic (and relatedly legal rules and justifications) are not supreme high forms of knowledge. They are useful, but only insofar as a person recognizes what they are and are not. To borrow heavily from Schopenhauer, legal rules are merely knowing in the abstract what everyone knows in the concrete. Legal rules are the product of synthesizing other forms of knowledge acquisition. In every case, it certainly is easier to apply a legal rule, but, that doesn't mean the same outcome cannot be reached some other way. In fact, the legal rule is a codification and approximation of the other way.

But, sometimes the legal rule gets it wrong (as Justice Marshall says). Language (like "strict scrutiny") legal rules, these are but approximations of ways to achieve outcomes. And sometimes, these abstractions get the outcome wrong (or in the case that the NYT brought up, the desired outcome diverges from the legal outcome). It isn't so much a paradox that the application of a rule leads to the wrong outcome but an imperfection with the creation of the abstraction itself. Of course, this warrants an entirely different discussion. I only mean to point out that legal rules are imperfect beings, created abstractions designed to imitate other forms of reasoning.

Which brings me to why I don't think we need another intellectual on the court. Applying rules is fantastic and I'm sure that a Harvard, Yale, or Columbia education is fantastic in teaching one how to apply legal rules, create legal rules, etc. To be sure, I want a justice who knows how to navigate legal rules and make good arguments. But to have 9 people good at applying something so disjoint from the other forms of reasoning makes me a little queasy. I worry when people get too absorbed in abstractions, especially when they are the very people who create abstractions. Perhaps I am a little (or a lot) influenced by Eben on this, but it did not take me too long in Con Law for me to realize that Marshall was one of my more favorite Supreme Court justices. Taking rules too seriously leads to bad outcomes, but only he seemed to realize this. And, as Taylor said, I'm afraid we are just going to end up with 9 bureaucrats who are really good at applying, creating, and bending rules.

-- MatthewZorn - 13 May 2010

>Is anyone else disappointed with this nomination?
I haven't felt disappointed or pleased. I understand what many people are saying about the Court being stacked with ridiculously elite, arguably out-of-touch people. However, the field of choice is limited as long as we all stick to the view that the justices must be lawyers. Anyone with a law degree -- Ivy League or not -- is automatically more elite than 90% of Americans. This is why I'm not disappointed. I didn't expect anyone truly different from the others.

>9 bureaucrats rather than 9 wise men (and women).
She is a replacement hitter for the liberal(ish) Four. The exciting moment will come when one of the right-wing Five retires. The exact beliefs and abstruse doctrines favored by each individual justice aren't nearly as important as how many there are on each side.

I sound cynical here, so I will add that I'm glad she's a woman. The Court frequently hears cases that I think are easier to understand and decide well on if you have lived your life in a female body.

-- AmandaBell - 14 May 2010

I agree with Matthew on his point about legal abstractions. The Supreme Court is able to turn such important issues into issues of abstractions, especially in some of the older opinions that we read in Con Law. However, I also think that the court has modernized a bit since the 1920’s. The opinions and the reasoning behind them have been easier to understand. On the other hand, that doesn’t always make the decisions that come out of the court the correct ones.

But my question to Matt is would Kagan be a better candidate if she had the same accolades but went to a non-Ivy League law school? What would that change? Also, what kind of “non-intellectuals” should be on the court? This goes to Amanda’s point to which I also agree: one would need to be some kind of intellectual to successfully finish law school and get a JD in the first place.

-- StephanieOduro - 15 May 2010

For anyone that is interested, I highly recommend watching the West Wing episode "The Short List." It deals with a lot of the issues that have been raised here - albeit with a more political tilt and the brilliantly-written dialogue of Aaron Sorkin.

-- TaylorMcGowan - 16 May 2010

Today's Washington Post presents an argument for nominating only elites to the Supreme Court. I guess that Supreme Court justices are nominated based on the same criteria used to hire in most professions (and from which we will all benefit from at some point in our careers) - comfort with the candidate on a personal level and risk-minimization on a professional level.

-- SaswatMisra - 16 May 2010

I will write a more extended response in a couple days. Suffice to say, though, that it is hard to argue with the Dean of Berkeley Law (and HLS Alum) when you make devastating assumptions.

First, that getting into an elite institution (i.e. doing well on filling in bubbles) is demonstrative of one's ability to understand and apply the law. Second, that student evaluation while within law school is determinative of ability. Third, and most disturbingly he creates a an elephant sized strawman--nobody is arguing that there should be no elites on the court (i.e. that "elites do not belong"). Rather, the argument is that the court should not be exclusively elites. As it happens, he is arguing against nobody.

I think though, that his article is extremely valuable and supportive...of my position.

-- MatthewZorn - 19 May 2010

I think you can argue that the elitism of the Supreme Court is one of its strengths. In addition to the role it plays in the Federal Government's separation of powers, the Supreme Court helps perpetuate an idea of objective law and justice. I realize that this is a myth, and one that people accept to varying to degrees, but the almost sacred place it holds in the public consciousness actually does add a certain degree of stability to society. Part of why I don't think that myth is dangerous is precisely because the Supreme Court is so political. Citizens do affect the Court through their election of presidents and other politicians. They simply do so more slowly and over a longer time frame.

Also, why doesn't it bother you that we keep having Ivy League presidents? We haven't had a president in over 20 years who didn't go to Yale or Harvard.

-- DanKarmel - 16 Jun 2010

I sort of slept on this...I'll start with my main 2

Critique 1: The author, in my mind, overestimates the meritocracy of the system. Now that everyone has received their grades back in many of their classes, and seen how exam prep and knowledge correlates with grades, maybe we can see the point--there is a good deal of random luck involved. Even if one does suppose that getting top-grades is not luck, why the hell does the ability to ace a 4 page issue spotter make you qualified for a Supreme Court seat. Oh wait, it doesn't.

Of course, there is more to excelling than 1L grades. But within law school, 1L grades are so influential its just hard to ignore them and in my mind inflicts a devastating blow on anyone who claims "law school success" is equivalent to "knows how to be a good judge."

The other argument against "eliteness" on the meritocracy front is that while Harvard/Yale/Stanford on down house the best and the brightest, the next 50 schools all contain equally capable candidates. In my mind, a top 10% student at Harvard will be able to exercise the same level of legal analysis as the top student at say, Montana or Florida. Which leads me to #2...

Critique 2: Being a justice requires competent legal analysis, not brilliance. Most of all, a Supreme Court justice should be just and fair. And, I see no evidence that Harvard students have any greater notion of fairness than a Georgetown student. Of course, this point is moot if you are of the school of "the law leads a person to the correct outcome." Of course, only the most delusional and ignorant believe that constitutional law is based on a set of formal rules and that the rules dictate the outcome. This has it backwards--the outcomes determine the rules. As such, a person who can perform a brilliant analysis is only better insomuch as that person can disguise the outcomes through opaque recitations of doctrine. There is no evidence to indicate that Harvard alums are better a judging, i.e., applying law to fact.

My instincts, though, tell me that Kagan is a person who may lose the forest through the trees. This (http://blogs.edweek.org/edweek/school_law/2010/05/marshall_kagan_a_knucklehead_o.html) sort of solidifies this opinion. Of course, she may have changed.

-- MatthewZorn - 16 Jun 2010