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The Next Supreme Court Justice Should Be More Like the Average American

by on July 03, 2018 5:00 AM

Last Thursday morning my wife and I were on our daily walk when I had an epiphany.

The route we normally walk through our neighborhood takes us past the home of the Democratic nominee for Pennsylvania’s new 12th Congressional District. As we passed his house I thought to myself, here is a neighbor, living in a subdivision of slightly-above-average homes, who is vying to be one of a select group of 435 people in the entire country to represent their fellow citizens in Washington, D.C. And I thought, how cool is that?

Then the proverbial light bulb went on in my head.

The day before, Justice Anthony M. Kennedy had sent a letter to President Trump informing him that effective July 31, 2018 he was ending his regular active status as an associate justice of the Supreme Court. In short, he was resigning.

The Supreme Court of the United States – a REALLY select group of 9 people – is going to have an opening for an associate justice.

Upon returning from our walk, I went to my office and grabbed the miniature version of the U.S. Constitution I keep near my desk (For those who think this might be wonkish I also keep a miniature copy of “How the Grinch Stole Christmas” by my desk).

Opening the small book I turned to Article III, Section 1, and found this:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

And that’s it.

Supreme Court justices do not have to be a certain age, are not required to have a particular education level, be part of a specific profession, be native-born citizens, or, and this is very important, be lawyers or law school graduates. The president nominates someone for a vacancy and the Senate votes, by simple majority, to confirm the nominee. And bingo, you are a Supreme Court justice.

Which makes good common sense. Supreme Court justices make decisions based on the Constitution. They are not traditional trial judges. They don’t need to be versed in the thousands upon thousands of pages in law books regarding how to legally conduct a trial. They will be making decisions based on a document you can read completely in less than an hour. They will hear lawyers from competing sides state their cases. They will ask some questions. Then they will adjourn and come to a decision among themselves as a group. In theory, the practical parts are nothing more difficult than your neighborhood volunteer following the standard procedures in a town or charity board meeting.

In the early 1800s, Alexis de Tocqueville, a French political scientist, observed the workings of the United States and wrote a classic outsiders viewpoint of this budding young country titled “Democracy In America.” Almost 200 years ago, he described several characteristics of the Supreme Court we find accurate today. He found “its prerogatives are almost entirely political,” and “their power is enormous, but it is clothed in the authority of public opinion.” “Federal judges must not only be good citizens, … they must be statesmen, - politicians, not unread in the signs of the times,” and “…if the Supreme Court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war.”

In his book, de Tocqueville also described the other levels of the American judicial system. At the local level he found it important to comment on the individuals presiding over legal matters -- justices of the peace. He described them this way: “… a well-informed citizen, though he is not necessarily versed in the knowledge of the laws… His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.”

The common theme between the local level and the Supreme Court is that the people leading the way don’t have to be lawyers. What I take from that is, although you don’t want your neighborhood volunteer becoming a Supreme Court justice, the qualities most necessary for the job certainly don’t require law school attendance.

So if we take the traits of being a good citizen and statesman, prudence, awareness of the signs of the times, good sensibility, and integrity, the pool of candidates for Supreme Court justice widens quite a bit, if we use these characteristics as guidelines.

And why shouldn’t it? The Supreme Court is making decisions that affect all Americans. All 325 million of us. The 325 million who have a median annual household income of around $59,000; who live in houses with a median value of $216,000; who drive vehicles that are on average over 11-years-old; who have a median household net worth of about $80,000; and of whom almost 60 percent have some college education, but no degree. Shouldn’t there be at least one person making those decisions who fits this mold?

The current members of the Supreme Court don’t fit any of those molds. Granted, federal officials are exempt from disclosing the value of their homes so that information is unavailable. However, the newest justice, Neil Gorusch, was at one time selling his Colorado home for $1.6 million. They make over a quarter-million dollars a year. The minimum net worth of six of them exceeds $1 million, and since this number doesn’t include the value of their homes, it is likely low.

But the one defining characteristic of how unlike average Americans our justices are is this: all nine have undergrad degrees and graduated from law school. And not from a number of different law schools. No, five of the justices went to Harvard, three went to Yale, and one went to Columbia.

Are good citizenship, prudence, good sense and integrity the unique province of only three places in this country? I think not. I believe the status quo with regards to Supreme Court Justices is inconsistent with the founding vision of America.

Hence my epiphany.

I would very much appreciate the person who fills this Supreme Court vacancy be someone with good sense and integrity, someone of close-to-median means and values, someone who lives in a home attainable by most Americans, and has an education consistent with the majority of Americans. Someone who more closely resembles the average characteristics of the vast majority of the people who are the recipients of the Supreme Court’s decisions.

I think we would be surprised at how well that works out.

 



John Hook is the president of The Hook Group, a local management consulting firm, and active in several nonprofit organizations. Previously John spent 25 years in executive, management and marketing positions with regional and national firms. John lives in Ferguson Township with his wife Jackie and their two children.
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