‘Front Row Kids’ dominate U.S. courts
Judges may not even realize they’re biased
In the wake of the 2016 election, we heard a lot about America’s division. One of the best formulations of this 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, financial or political jobs; and see themselves as the natural rulers — and the “Back Row Kids,” who placed less emphasis on school, and who resent the pretensions and bossiness of the Front Row Kids.
Teaching constitutional law, it occurred to me that though 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 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. After realizing that, my march through the decisions of the Warren court and its successors took on a different flavor. Again and again, important decisions look like decisions on behalf of the Front Row Kids.
In the Goldberg v. Kelly case granting due-process hearings before 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 elite. Everyone is a graduate of Harvard or Yale except for Ruth Bader Ginsburg, who got her degree from that Ivy League upstart Columbia.
As Dahlia Lithwick observed in 2014: “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, but his background is the exception that proves the rule. Though some see him as bringing heartland values because he came to the court from Colorado, Gorsuch is a graduate of Columbia, Harvard and Oxford. Only in today’s Supreme Court , composed of “judicial thoroughbreds,” would his résumé 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 might not even realize it’s ignoring them.
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 nonlawyer 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.