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Before John Roberts Jr. became chief justice in late 2005, the U.S. Supreme Court had always included at least one member who had arrived without prior judicial experience. Today, not only is every justice a former judge, but each came directly from a federal circuit court. Before Justice Samuel Alito Jr.’s appointment in early 2006, the Court never had a majority who began their careers as judicial law clerks. Now it does. Indeed, the new chief justice has two clerkships on his r�sum� — another Court first. Yet none of the current justices has ever served in the Cabinet or been elected to any notable legislative or executive position — city, state, or federal. This too is unprecedented. And it seems unlikely any justice will soon resign to take some important nonjudicial position. In short, Americans are entering a new phase of the separation of powers. Call it the separation of careers: To become a justice, one must now typically ascend through the federal judiciary — paradigmatically, from clerkship to circuit. Those outside this ladder, however impressive their credentials, would appear to be at a distinct disadvantage in the modern appointment process. A POLITICAL PAST For most of its history the Court has been far more closely linked to the political world. From John Marshall, appointed in 1801, through Melville Fuller, who served until 1910, none of the nation’s chief justices came to the Court with any judicial experience. Earl Warren never sat on the bench before becoming chief in 1953, and three other 20th-century chiefs — Charles Evans Hughes, Harlan Fiske Stone, and William Rehnquist — had no judicial experience before their initial appointments to the Court as associate justices. Of course, this didn’t mean these chiefs were unqualified. Rather, their pre-Court credentials were derived from distinguished service outside the judiciary. For example, Marshall, Salmon Chase, and Stone had all held top Cabinet posts — as secretary of state, secretary of the Treasury, and attorney general, respectively. Chief Justice Roger Taney had held two top Cabinet posts, first as attorney general and then as treasury secretary (though the Senate ultimately refused to confirm him in the latter position). Hughes and Warren had been popular governors of New York and California, respectively, and Hughes also served as secretary of state in between his two stints on the Court (first as associate justice, later as chief). Even justices who had sat on the bench before sitting on the Court often boasted significant elective and nonjudicial experience, as well. For example, although William Howard Taft had been a circuit court judge early in his career, by the time he became chief justice he could list several other jobs on his r�sum�, including the presidency of the United States. Similarly, both Hugo Black and Sandra Day O’Connor had once served as state judges, but both also had considerable political experience — Black as a U.S. senator, and O’Connor as a former majority leader of the Arizona Senate. Even Potter Stewart, who came to the Supreme Court directly from a federal circuit court, had early in his career been twice elected to the Cincinnati City Council and had served one term as the vice mayor of that city (where his father had once been mayor). Until recently, justices have also periodically left the bench for nonjudicial positions. For example, John Jay stepped down in 1795 to become governor of New York; David Davis left in 1877 for the U.S. Senate; Hughes resigned in 1916 to run for president (and later became secretary of state); James Byrnes quit in 1942 to join Franklin Roosevelt’s administration; and Arthur Goldberg left in 1965 to become ambassador to the United Nations. WHAT CHANGED? What explains the judicialization of today’s Court? Several interconnected factors appear to be at work: • The mushrooming of the federal judiciary. There are more sitting federal judges than ever before. In 1789 there were six Supreme Court justices and 13 lower federal court judges. Today, while the size of the Supreme Court has inched up to nine, the number of lower court judges has skyrocketed to nearly 1,000. Close to 200 judges now sit on federal circuit courts. Their main job is to write appellate decisions on behalf of a collective court — a job rather close to that of a Supreme Court justice. • The democratization and polarization of the Senate. Senators were once picked by state legislators, rather than by the voters directly. In olden days the job descriptions of the Senate and the Court overlapped more. Both bodies attracted cosmopolitan lawyer-statesmen, and the Senate was famous for high constitutional debate, featuring men such as Daniel Webster and John Calhoun. Today the Senate is a more populist body, attracting a different persona. Whereas Senate alums once routinely became justices, none has done so in the past half-century, thereby creating much of the vacuum now filled by circuit court judges. Moreover, a modern senator who aspires to bipartisanship may face considerable political resistance within his own party (as Connecticut’s Joseph Lieberman has recently learned). Thus, most senators today have rather partisan records that would make it difficult to present themselves, were they to be nominated to the Court, as neutral legal experts. Openly partisan appointments are hard to pull off in the modern era, when the president’s party has rarely if ever had filibuster-proof majorities in the Senate. Unlike senators, circuit court judges are never obliged to wear their affiliations on their sleeves, and so may be more easily packaged as Court nominees. • The rise of modern law schools and judicial clerkships. For much of American history, aspiring lawyers did not need to serve long stints in law school. Two of the past century’s greatest justices, Hugo Black and Robert Jackson, had nonstandard legal educations. But today legal education is dominated by university-based law schools led by professors who began their careers as judicial law clerks. Also, there is a distinct hierarchy among modern law schools. Eight of the current justices graduated from one of three Ivy League law schools (Harvard, Yale, and Columbia), while the ninth hails from another top school (Northwestern). Would-be justices from lower-ranked schools — such as Harriet Miers, a Southern Methodist University graduate who was nominated to replace O’Connor and then later withdrew — face a steep uphill climb. Nested within the pecking order among schools is a separate pecking order whereby top graduates clerk for federal judges, who then initiate their apprentices into the judicial world. This elaborate system of early judicialization did not exist for much of our history. • The dynamics of televised hearings. In Senate hearings, nominees are publicly quizzed on fine points of current Supreme Court doctrine, which is filled with elaborate jargon and intricate multipart tests. In this gotcha game, sitting federal judges, whose daily job involves applying Court doctrine, have a leg up on thoughtful lawyers who may be less fluent in Court speak. • The value of vetting and pre-confirmation confirmation. Every sitting federal judge has already been confirmed once by the Senate. While this does not guarantee a second confirmation (just ask Robert Bork), it does mean a sitting judge knows the confirmation drill — and the drillers. Because state judges have not been confirmed by the Senate, their nominations may introduce more wild cards. Thus, the Court is becoming more nationalized as well as judicialized. It is too soon to identify and measure all the consequences of the Roberts Court’s highly judicialized membership. The full Court, after all, has sat for only a few months. And we should not expect dramatic shifts in its standard operating procedures. But in its first term, the Roberts Court closely monitored circuit court performance, going beyond law declaration to highlight in its opinions examples of particularly good or particularly bad appellate judging on the various circuit courts. This emerging tactic — judging judges as well as cases — is just the sort of thing one might expect from a Supreme bench composed exclusively of former appellate judges.
Akhil Reed Amar teaches constitutional law at Yale and is the author of America’s Constitution: A Biography . This article first appeared in The American Lawyer , an ALM magazine.

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