Did The Supreme Court Uphold FDR’s Internment Camps Because It Didn’t Have Enough Ivy Leaguers?

As I said yesterday, Brian Sandoval will not be Barack Obama’s Potemkin nomination for the Supreme Court. Speculation that even floating Sandoval as a trial balloon would somehow bully pulpit the Overton Window and force the next Democratic president to nominate someone like Sandoval are also, as with virtually all such theories, clearly baseless. All of which is good! I do want to reiterate, however, that this is good because Sandoval doesn’t have the values one could reasonably expect of a Democratic Supreme Court nominee, not because he’s “unqualified” because he went to law school at Ohio State and doesn’t have has less than 5 years of federal judicial experience. Sandoval, like thousands or perhaps tens of thousands of other people, is perfectly well “qualified” to sit on the Supreme Court. And the focus on formal qualifications tends to obscure what Supreme Court nominations are really about.

As I’ve written before, the idea that only candidates from the very top law schools need apply is a fairly recent one, and there’s no basis for the idea that you need a top-level law degree to do the job:

While it is not surprising or inappropriate that a significant number of Supreme Court justices have come from Harvard and Yale law schools, the utter domination of graduates from these schools on the current court reflects more of a lazy credentialism than a genuine meritocracy. Certainly, nothing about the history of the Court suggests that an Ivy League degree is necessary to become a good Supreme Court justice: just among important 20th century justices, consider Hugo Black (University of Alabama), John Marshall Harlan II (New York Law School), Earl Warren (Boalt Hall at UC Berkeley), Robert Jackson (attended Albany Law School without graduating), Lewis Powell (Washington and Lee), Thurgood Marshall (Howard), and Frank Murphy (Michigan).

In comments, Denverite argues that Black is in fact a cautionary study in what happens when you select hicks from provincial law schools:

This would be the Hugo Black who authored the majority opinion in Korematsu, correct?

The same Hugo Black who was fond of sophisticated legal stylings such as “Congress shall make no law means that it shall make no law”?

I know he was “good” on the First Amendment. I get that he was pretty good on voting rights. But his lionization overlooks a lot of pretty ugly warts.

Well, funny that he should mention Korematsu, which is central to my point. Black’s opinion was also joined by Frankfurter and Douglas, who had not only Ivy League law degrees but were prominent law professors at Harvard and Yale, respectively, before joining the Court (in Douglas’s case, via the SEC.) Also part of the majority was Wiley Rutledge, and while I can understand the assumption that people associated with Colorado Law are more fit to be hanging around with known degenerates and undesirables on 3rd-tier political blogs than to be Supreme Court justices, he was a more-than-able justice and a great progressive on cases not dealing with the war powers of the president who appointed him. Even worse for the argument that formal academic credentials explain the outcome in Korematsu is that the dissenters in the case were the aforementioned Jackson and Murphy as well as Owen Roberts, only formally an Ivy Leaguer with his degree from mere Penn.

Korematsu, in other words, had less than nothing to do with where Hugo Black went to law school. It’s part of an extensive series of cases in which the Court defers to presidential war powers while troops are in the field. Had every justice on the Court been first in his class at Yale or Harvard it would have come out the same way. (I would also note that the Supreme Court bears rather less responsibility than the good Groton and Harvard man who was actually responsible for the internment.)

As for the other point, pretty much everything I said about Douglas here also applies to Black. It is, of course, perfectly true that Black was outcome-oriented justice in politically salient cases. It is also true that “Congress shall make no law means Congress should make no law” is not a highly sophisticated interpretation of the First Amendment. (Although it is at least more attractive than “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” I assume that John Roberts got his law degree from Cooley, because surely nobody from Harvard Law could confuse this feeble tautology with a serious legal argument.) The problem is that what is true of Black is true of every Supreme Court justice ever. If I may be forgiven for mounting a hobbyhorse, let me quote the concurrence in Dennis v. U.S. — upholding the suppression of speech by Communists completely unconnected with illegal conduct, with Douglas and Black dissenting — filed by noted legal SUPERGENIUS Felix Frankfurter:

The right of a man to think what he pleases, to write what he thinks, and to have his thoughts made available for others to hear or read has an engaging ring of universality. The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that, without more, dispose of the matter?

Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. Madison’s own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. And it deserves to be noted that, in writing to John Adams’ wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States.

The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument.

This flowery prose and law-office history might make it seem as if he had a more sophisticated theory of the First Amendment than Black. Trust me, he didn’t. Frankfurter’s theory was “I will refuse to apply the First Amendment except when I won’t.” That’s it. And, in general, Frankfurter’s much-vaunted theory of “judicial restraint” did not have an iota more content than “the Court should be restrained except when it shouldn’t.” He did not have a remotely coherent theory explaining the many exceptions to his self-professed restraint. And as his unwillingness to apply the First Amendment in a case of pure political speech suppressed pursuant to an act of Congress makes clear, none of this was connected to the text of the Constitution. My favorite example of this is that Frankfurter, who agonized endlessly over Brown v. Board and joined the majority only very reluctantly, thought that Bolling v. Sharpe (the companion case dealing with segregation in D.C.) was an easy case, despite the fact that the equal protection clause binds the states and not the federal government. All of this, in other words, was driven by Frankrurter’s instincts about when judicial review was desirable, not some hyper-sophisticated legal theory he developed as a law student and legal scholar. Frankfurter’s general intuition (subject to many unexplained exceptions) that the lesson of the New Deal was that judicial review was bad for liberal interests is no more and no less “political” than Black’s belief that the Bill of Rights and the Reconstruction Amendments should be turned on the enemies of the New Deal. Only Black was right a lot more often than Frankfurter.

But, really, this is the whole problem with this highly concentrated credentialism being part of the Supreme Court nomination process. It’s essentially pretending that a political process really isn’t, that if somehow if the judges are all “qualified” enough then the Supreme Court will resolve disputes through technical legal analysis rather than politically. But this is nonsense. You don’t need a top-level law degree to be an excellent Supreme Court justice and HYS degrees are no guarantee of a good one.