The problem is not just that Back Row America’s values won’t be considered — it’s that the Supreme Court may not even realize it’s ignoring them.
In the wake of the 2016 presidential election, we heard a
lot about America’s division into two mutually hostile camps: A largely
coastal, urban party run by educated elites, and a largely rural and
suburban “Flyover Country” party composed of people who did not attend elite
schools and who do not see themselves as dependent on those who do.
This
divide is more fundamental than mere partisan identification, as there are
Democrats and Republicans in both groups.
One of the best formulations of this division comes from
photographer Chris Arnade, who has spent years documenting the lives of
America’s forgotten classes.
In his characterization, America is split between
the “Front Row
Kids,” who did well in school, moved to managerial or financial or
political jobs and see themselves as the natural rulers of their fellow
citizens, and the “Back Row
Kids,” who placed less emphasis on school and who resent the
pretensions and bossiness of the Front Row Kids.
While teaching constitutional law after the
election, it occurred to me that while the Back Row Kids can elect
whomever they want as president, senators or representatives, there
is one branch of the federal government (and all state governments) that is,
more or less by its nature, limited to Front Row Kids: the judiciary.
Someone like Wisconsin Gov. Scott Walker can hold
office without
a college degree, but as a practical matter, the judiciary is limited to
people who hold both undergraduate and graduate degrees.
Since law degrees
became a required part of admission to the bar, the judicial branch has been
the domain of people who are not merely highly educated, but educated in the
particular way that law schools educate. They are, in short, Front Row Kids of
the first order.
Pennsylvania's Supreme
Court Justices
After realizing that, my march through the decisions of
the Warren Court and its successors took on a different flavor.
Again and
again, seen through the lens of this class divide, important decisions look
like decisions on behalf of the Front Row Kids.
In the famous Goldberg
v. Kelly case granting due-process hearings prior to the
termination of welfare benefits, the Supreme Court looks to have been
holding on behalf of poor and uneducated people.
Yet it turns out that
the actual beneficiaries are the highly educated: Social workers and lawyers,
who are paid out of welfare agency budgets. Likewise, the court’s treatment
of everything from reproductive rights to legislative apportionment has
reflected Front Row priorities.
Meanwhile, the Supreme Court, has become more and more
elite.
United States Supreme
Court Justices
Increasingly, judges aren’t just law school graduates, they’re graduates
of the most elite law schools.
And that goes double for the Supreme Court,
where everyone
is a graduate of Harvard or Yale except for Ruth Bader Ginsburg, who got
her degree from that scrappy Ivy League upstart, Columbia. As Dahlia Lithwick
observed in 2014:
“The current justices are intellectually qualified in
ways we have never seen. Compared with the political operators,
philanderers and alcoholics of bygone eras, they are almost completely
devoid of bad habits or scandalous secrets. This is, of course, not a bad thing
in itself. But the court has become worryingly cloistered ... There is not
a single justice “from the heartland,” as Clarence Thomas has complained. There
are no war veterans (like John Paul Stevens), former Cabinet officials (like
Robert Jackson), or capital defense attorneys. The Supreme Court that
decided Brown v. Board of Education had five members who
had served in elected office. The Roberts Court has none. What we have
instead are nine perfect judicial thoroughbreds who have spent their entire
adulthoods on the same lofty, narrow trajectory.”
Lithwick wrote this before the accession of Justice Neil
Gorsuch to the court, but his background is the exception that proves the rule.
Although some see him as bringing heartland values because he came to the court
from Colorado, he is a graduate of Columbia,
Harvard and Oxford.
Only in today’s Supreme Court, composed of
“judicial thoroughbreds,” would his resume seem even a little bit
populist.
There’s nothing wrong with thoroughbreds as such, and if
the court decided only narrow technical issues of law none of this would
matter.
But some of the most important social issues of the day come before the
court, and given its members’ insularity, the problem is not just that Back Row
America’s values won’t be considered — it’s that the court may not even
realize it’s ignoring them. It’s worse still when you realize that, as Angelo
Codevilla has noted, America’s ruling class is itself much narrower than it
used to be:
“Today’s ruling class, from Boston to San
Diego, was formed by an educational system that exposed them to the same ideas
and gave them remarkably uniform guidance, as well as tastes and habits.
These amount to a social canon of judgments about good and evil, complete with
secular sacred history, sins (against minorities and the environment) and
saints. Using the right words and avoiding the wrong ones when referring to
such matters — speaking the ‘in’ language — serves as a badge of
identity."
To counteract this, we might want to bring a bit more
diversity to the court. I’m not recommending that we eliminate the informal
requirement that judges have law degrees (though non-lawyer judges were common
in colonial times, and some countries still use them).
But maybe we should look
outside the Ivy League and the federal appellate courts.
A Supreme Court
justice who served on a state court — especially one who had to run for
election — would probably have a much broader view of America than a
thoroughbred who went from the Ivy League, to an appellate clerkship, to a
fancy law firm.
Just a thought.
Glenn Harlan Reynolds, a University of Tennessee
law professor and the author of The
New School: How the Information Age Will Save American Education from Itself,
is a member of USA TODAY's Board of Contributors. Follow him on Twitter: @instapundit.
