Is potential U.S. Supreme Court nominee Amy Coney Barrett too inexperienced to sit on the nation’s highest court? Barrett’s long career as a law professor in Indiana—but only eight months as a federal appeals judge—has given critics some fodder to argue she doesn’t have the background for a Supreme Court justice.
But what’s the appropriate level of experience for a justice, if any, and how has that experience varied over the decades? A recently updated academic article concludes the current court, led by Chief Justice John Roberts Jr., is historically a “relative outlier” when it comes to the pre-appointment experience of the justices.
“The Roberts court justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C., than any previous Supreme Court,” according to the study, written by Benjamin Barton of the University of Tennessee Knoxville College of Law. To that end, Barrett’s experience, even given her short time on the U.S. Court of Appeals for the Seventh Circuit, makes her unique among the sitting justices.
Barton’s study was first published in 2012, but he has updated his data for a book he is writing. “The data suggests that many of the criticisms of justice backgrounds are well grounded and that as a whole the experiences of the Roberts court represent a substantial departure from previous Supreme Courts,” Barton wrote.
Barton said his study was the first to take a comprehensive look at the annual experiences of every justice across multiple criteria, including geography, education and work. “There has been a marked change over the last 50-60 years and a drift away from the more diverse background experiences to a much more cookie-cutter look. I think a big part of that is poisonous confirmation battles,” he said in an interview.
Three of the reported leading contenders to fill the Anthony Kennedy vacancy—Barrett, Brett Kavanaugh of the D.C. Circuit and Raymond Kethledge of the Sixth Circuit—are federal appeals judges. Kavanaugh is the most “Washington” in this group, having worked in private practice and in the George W. Bush White House. Kethledge and Barrett attended non-Ivy schools—their appointment would break the Harvard-Yale-Columbia grip on the high court.
The Roberts court, according to Barton’s study, has collective experiences “clustered around particularly elite experiences,” such as time spent at Ivy League institutions; working in high-end law/policy jobs for the government; in academia; living in Washington; and serving as federal appellate judges.
The “lost experiences” include time spent in private practice of law, elective office and trial judging,” according to the study. The Roberts court justices, Barton said, have spent more time in “cloistered and neutral work settings” than any previous group of justices.
“Cloistered and neutral means settings where a lawyer is kept out of the fray and encouraged to think about legal problems (and life) in the abstract,” the study said.
Although he found no perfect mix of justices, Barton said the most interesting courts are the earliest ones because they included former politicians, veterans, judges, people with no formal education and formal education—”people who had served in lots of different capacities before going on the court.”
Fifteen U.S. senators have served on the Supreme Court. The most recent was Justice Hugo Black, who served on the court from 1937 to 1971. In the current race to a nomination, Trump has reportedly considered U.S. Sen. Mike Lee, the Utah Republican.
The narrowing of experiences matters, according to Barton. “Diversity of experience helps decisionmaking. There are tons of business school and other studies showing that’s the case. Second, this sameness of experiences today—we’re replacing jobs and experiences that require you to be around regular people with these super-cloistered, elite experiences.”
Barton said he is a big fan of judicial pragmatism and learned experience in the law. “All the way back to Aristotle the question has been: How do you gain wisdom?” he said. “The answer is experience. The Supreme Court does less technical legal work than before and more of this really broad, policy questions like gay marriage and religion.”
Barton dismissed the idea that Barrett doesn’t have the experience to sit on the Supreme Court, where she was a former clerk to the late Antonin Scalia. Barrett, 46, had taught at the University of Notre Dame law school since 2002 before her confirmation last year to the Seventh Circuit.
“Given the age range Trump is looking at, you’re not going to get experience like Justice Ginsburg brought to the court unless you get close to her age when she was nominated,” Barton said. As for Barrett, “It’s not like she’s 35.”