Academic

Symbols of Our Times: The Court as ?Collector's Set?

By Adam Benforado

Over the last week, there have been dozens of articles, blog posts, and conversations that began ?Obama should choose a . . .? followed by some identity variable: governor, Latina, ?out? lesbian, non-lawyer, woman, law professor, empiricist.  Today, District Court Judge Ann Aldrich (Northern District of Ohio) and her law clerks had an op-ed in which they argued that ?President Obama should select a nominee with experience that no other sitting justice has?service as a trial judge on a federal district court.?  Most of the people making these claims appear to believe that the identity variable is a good predictor of how the person will act as a justice (that is, they assume that, once on the bench, the justice will be true to his or her ?identity?):  a lesbian will be an advocate on the Court for the equal treatment of the LGBT community; a district court judge will ensure that the Supreme Court provides ?clear and workable directives? to the courts of first instance.

The effectiveness of using demographic categories to divine future behavior is up for debate.  (On this score, it is worth rereading Judge Guido Calabresi?s 1991 New York Times op-ed in which he imagined Clarence Thomas one day ?stand[ing] up to the pack . . . and remind[ing] us all of what it is like to be poor and friendless and to be facing a hostile state.?)   However, what interests me slightly more than the accuracy or inaccuracy of prediction is the potential ?symbolic? effect of having a governor, a Latina, a homosexual, or a non-lawyer appointed to the Court.

How much does symbolism matter with respect to the Supreme Court?  In some ways, the Court is an institution imbued with symbols, from the robes the justices wear, to the elevated bench upon which they sit, to the formal call to order by the marshal of the Court.  But, then, one of the most distinctive things about the Court is how much the justices are kept separate from the public, how they remain distant and out of view.  Part of this is by institutional design and part of it is by practice.  Efforts to, in Stephen Colbert?s lexicon, ?better know a justice??like proposals to allow video cameras during oral argument?have generally been met with resistance.  And with a few exceptions, the justices themselves have abstained from engaging the public in meaningful ways.   

The result of these buffers is a general unfamiliarity with the membership of the Supreme Court by the public.  Indeed, I would suspect that if you asked most Americans to tell you about the Court, they would almost exclusively talk about ?judicial activism,? Roe v. Wade, and other culture war issues, rather than the identities of the justices.       

Indeed, how many Americans can name a Supreme Court justice?  How many can name two?  How many know that there is only one female justice and one African American?  How many know that there are five Catholics on the current Court?  How many know that it would be permissible for the President to install a non-lawyer? 

In this context, should we expect a significant symbolic effect as a result of the appointment of the first Latina justice or Buddhist justice or having two women on the Court again?

I?m not sure what the answer is, although I suspect that the biggest impact would be on young lawyers and law students?those who are carefully attuned to the dynamics of the Supreme Court and whose decisions and practices will shape the law in the coming decades.  As David Hoffman pointed out over at Concurring Opinions yesterday, ?lawyers need professional models, to guide them in making hard decisions in the absence of judicial oversight.?  For all of us who call law our home, the symbolic effect may be very important indeed. 

Full post as published by The Faculty Lounge on May 07, 2009 (boomark / email).