Today’s U.S. Supreme Court is both highly diverse and homogeneous, not entirely unlike nine jugs that each have a unique color, composition, size and shape and contain sparkling mineral water from the same source.
“This is now the most diverse Supreme Court in terms of race and gender ever,” said Benjamin Barton, the Helen and Charles Lockett Distinguished Professor of Law at the University of Tennessee Law School and husband of Knoxville Mayor Indya Kincannon. “The court looks much more like the country than it ever has before, and I’m very much for that.”
Benjamin Barton speaks about the Supreme Court to the Holiday Luncheon of the League of Women Voters of Oak Ridge. He gave his talk in front of the bandstand at the 201 Café in Jackson Square.
It took 178 years before the first Black male justice (Thurgood Marshall in 1967) was appointed to the Supreme Court, which had consisted of only white male justices since the beginning of its judicial proceedings in 1789. A woman was not appointed to the Supreme Court (Sandra Day O’Connor in 1981) until 192 years after its inception. In 2022, when the high court was 233 years old, the first Black woman justice (Ketanji Brown Jackson) joined the high court, becoming one of the four women now serving on the Supreme Court with five men – a record.
In terms of race, Barton noted, the Supreme Court has two Black justices, a Latina justice and six white justices. In terms of religion, it is less diverse, with six conservative Catholics, one liberal Catholic, one Jew and one Protestant. The Supreme Court is considered to have six conservative justices and three liberal justices.
But the chief message that Barton, a Supreme Court expert, conveyed about today’s Supreme Court at the recent Holiday Luncheon of the League of Women Voters of Oak Ridge was that the nine justices have similar and narrow intellectual, educational and judicial career backgrounds, making the high court more homogeneous in some ways and less interesting than previous high courts.
That’s also the message of “The Credentialed Court: Inside the Cloistered, Elite World of American Justice,” one of the five books Barton has authored.
According to a summary of “The Credentialed Court”: “Today’s justices have spent more time in elite academic settings (both as students and faculty) than any previous court. Every current justice but Amy Conan Barrett attended either Harvard or Yale Law School, and four of the justices were tenured professors at prestigious law schools.
“They also spent more time as federal appellate court judges than any previous court justices. These two jobs (tenured law professor and appellate judge) share two critical components: both jobs are basically lifetime appointments that involve little or no contact with the public at large. The modern Supreme Court justices have spent their lives in cloistered and elite settings, the polar opposite of past justices.”
Barton said his book “is a study of the backgrounds of Supreme Court justices, basically what the justices did before they got onto the Supreme Court.” He added that he researched and wrote the book because “of the concern that most of them have gone to Ivy League schools and have similar backgrounds” and because the differences between present high-court justices and all past justices extending back to the opening of the Supreme Court 235 years ago “are measurable.”
Favorable views of the Supreme Court remain near a historic low, according to the Pew Research Center in August 2024.
For his book, he said, he started with research on John Jay and ended with Amy Coney Barrett. Jay, co-author of “The Federalist Papers,” was formally recognized as a founding father when President George Washington appointed him the first chief justice of the U.S Supreme Court in 1789.
Barton said that Barrett, who obtained her law degree from the University of Notre Dame, is the second graduate of Rhodes College in Memphis who was appointed a Supreme Court justice.
In his research on 116 justices appointed between 1789 and 2022, Barton learned that 12 “had no formal education whatsoever. They didn’t go to college and law school. But they read the law, became fantastic lawyers or senators or members of the House of Representatives, and then made it onto the high court.”
He added that a few justices rose “from absolute abject poverty to the peak of their legal profession. To read the amazing life stories of these people is super heartening and encouraging for the country.”
But his research shows that the current justices on the Supreme Court are highly intelligent people who have similar backgrounds and who lack broadly based experiences.
“Seven justices grew up on the East Coast. Seven justices grew up in a large city. Six of the justices spent their childhoods just in the mid-Atlantic between New York City and Washington, D.C. Five justices had one lawyer parent. Six justices went to a Catholic high school,” he told the audience at the league luncheon.
“Seven justices went to an Ivy League undergraduate school. Eight justices went to Yale or Harvard Law School. Six justices clerked on the Supreme Court, the hardest job in America to get when you graduate from law school. Three of the current justices replaced the justice they clerked for.
“Six of them worked at big corporate law firms in Washington, D.C. Eight came from federal circuit court judgeships, and then eight of them spent the majority of their legal career just between Boston and New York,” he said.
Barton expressed disappointment that current Supreme Court justices “came from the same set of experiences” and worked mostly for large corporate law firms where “you don’t see a lot of ordinary people’s problems.
“You want to see the real world before you get on the high court,” he said.
Compared with justices on previous Supreme Courts, Barton said the current justices are missing the experiences gained from the private practice of law. Previous justices practiced law for as long as 15 to 30 years whereas this high court’s justices have spent “under five years on average in the private practice of law.
“This is the first Supreme Court ever whose justices spent more time working for the government than working in private practice,” Barton said. “They worked for the Solicitor General’s office, the White House Counsel office, the Senate Judiciary Committee. These jobs helped them get on the court because they had met a lot of politicians, but they had not been spending time learning about the problems of ordinary people.”
Barton listed the variety of jobs that former justices had over the past 225 years before they were appointed to the court.
“There were two U.S. presidents, 14 U.S. senators, 17 representatives in Congress, 10 governors, 40 state legislators, five mayors and one school board member,” Barton said. “They understood the legislative and political processes. It’s important as a Supreme Court justice to understand the perspective of the people who passed those laws.”
Other justices previously held presidential cabinet appointments. According to Barton, eight justices were former attorney generals of the United States, five were Secretaries of State, four were Secretaries of the Treasury, three were Secretaries of the Navy, Interior and Labor, and one was a postmaster general before they finished their careers on the Supreme Court.
Many previous justices had fought in three wars – the Revolutionary War, Civil War and World War II. Barton said Oliver Wendell Holmes, one of the top 10 Supreme Court justices, “considered his time fighting in the Civil War as the most important experience of his life.”
Samuel Alito, he added, is the only current justice with military service: one year in Reserve Officer Training Corps (ROTC).
What the current Supreme Court has now that most previous courts lacked, Barton said, is former law professors. Also, many of the current justices have served not on the state courts, but only on the federal appellate courts where “the judges sit in a room, read a transcript, hear oral arguments once a month and never see any litigants,” he said. “The decisions of federal appellate judges make big differences in state courts.”
He remarked that previous justices have done a better job than current justices of explaining their decisions in fewer pages and in plain language that regular people can understand.
“We have too many of the same kinds of people on the Supreme Court,” he said. “They have done very little to have lived a full life experiencing things outside of just trying to get onto the Supreme Court. If you have nine people who all have the same experiences, they’re going to come to the same type of conclusions. If the court had nine people with diverse experiences, the justices are going to talk and argue more and come to better decisions.”
This article originally appeared on Oakridger: ‘Similar and narrow’ backgrounds of Supreme Court justices discussed