An Empirical Study of Supreme Court Justice Pre-Appointment Exper
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An Empirical Study of Supreme Court Justice Pre-Appointment Exper
^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Exper1306An Empirical study of Supreme Court Justice Pre-AppointmentExperienceBenjamin H. BartonThe University of Tennessee College of Law. bbarton@utk.eduFollow this and additional works at: https://trace.tennessee edu/utkjawpubl Ò" Part of the Law CommonsRecommended CitationBarton. Benjamin H., 'An Emp An Empirical Study of Supreme Court Justice Pre-Appointment Experirical study of Supreme Court Justice Pre-Appointment Experience" (2013). College of Law Faculty Scholarship.https://trace.tennessee.edu/utk_lawpubl/5An Empirical Study of Supreme Court Justice Pre-Appointment Exper
6This is brought to you for free and open access by the Law at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in ^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Experntact trace@utk edu.All Empirical Study ỌÍ'Supreme Court [ỊỊstịcẹ pre-Appoimment Experience Benjamin H. Barton1This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Co An Empirical Study of Supreme Court Justice Pre-Appointment Experurt Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this ỈS Insalubrious.The first propositioAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
n ỈS an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical pee^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Exper The results are startling and telling: 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.2 They also spent the most time In elite undergraduate and law school settings.3 Time spent In An Empirical Study of Supreme Court Justice Pre-Appointment Experthese pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time In the private practice of law, in trial judging, aAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
nd as elected politicians than any previous Court.1Professor of Law, University of Tennessee College of Law. B.A. 1991, Haverford College; J.D. 1996. ^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Exper Walker. Nancy Staudt. Scott A. Hendrickson. Jason M. Roberts. Jack Knight. Andrew D. Martin. Indya Kincannon. Jeff Hirsch. Jennifer Hendricks. Wendy Bach. Emily Moran, and the University of Tennessee College of Law for generous research suppoit. and the Honorable Diana Gribbon Motz.2This assertion An Empirical Study of Supreme Court Justice Pre-Appointment Experand those that follow in this paragraph are all explained and demonstrated infra_.The study treats the ivy league universities and Stanford as elite iAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
nstitutions.Having demonstrated that the Roberts Justices are outliers across multiple studied experiences, the article argues that the change is regr^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Experg technical excellence in legal reasoning and writing. These strengths are weaknesses in an era where the Court's opinions are growing longer,4 * more splintered* and ever more complex.6Second, the Supreme Court is the leading player in the drafting, amending and interpretation of the various federa An Empirical Study of Supreme Court Justice Pre-Appointment Experl rules,7 * and these Justices have less courtroom experience (as lawyers or trial judges) than prior Justices.Lastly, these Justices have a great deaAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
l of experience in cloistered and neutral jobs like appellate judging or teaching law and limited experience in jobs that require more interaction wit^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Experities for the development of the most critical judicial virtue: practical wisdom.®■ Ryan c. Black & James r. Spriggs II. An Empirical Analysis of the Length of U.S. Supreme Court Opinions. 45 Houston L. Rev. 621.632-38 (20081 (demonstrating empirically the growth in opinion length over the history o An Empirical Study of Supreme Court Justice Pre-Appointment Experf the Court).James K Spriggs, Explaining Plurality Decisions, 99GFO. 1 ..J. 515. 519 (2011) ("Historically, plurality decisions by the Supreme Court hAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
ave been relatively rare ... the frequency of plurality opinions dramatically increased in the 1940s and 1950s. the occurrence of plurality opinions b^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Experonsensus to Collegiality: The Origins of the "Respectful" Dissent, 121 Harv. I~ Rev. 1305. 1306-26 (20111 (discussing the growth in the dissenting opinion and the word “respectfully”). ” See I aura h. I .ittlc. Hilling With Words: Obfuscation. Avoidance, and Federal Jurisdiction Opinions 46l.'CI-A I An Empirical Study of Supreme Court Justice Pre-Appointment Exper.. Rrv. 75, 126 27 (1998) (finding increased complexity and obfuscation in Supreme Court federal jurisdiction opinions). Consider Richard Posner’s claAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
ssic critique from Holmes V. Buss. 506 F.3d 576. 579 (7® Cir. 2007): "The multiplication of rules and standards, carry ing in Ils train as it does end^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment ExperParadox of Delegation: Interpreting rhe Federal Rules of Civil Procedure,150 u. Pa. L. Rev. 1099. 1100-4 (2002).K Discussed infra___.There has been a spate of recent commentary on the pre-appointment experiences of the Justices on the Roberts Court. Some have argued that the current Supreme Court Ju An Empirical Study of Supreme Court Justice Pre-Appointment Experstices are overly similar: they all went to Harvard or Yale Law School,9 excluding Justice Kagan, they are all former judges on a federal circuit courAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
t of appeal,10 and they represent limited geographical diversity.11 Others have expressed concern that none of the current Justices have been politici^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Expert these differences are deleterious.13Nevertheless, this study is the first to take a broad overview of all of these factors. The question of whether the backgrounds of the current Justices are substantially different from past Justices is an empirical one, and this study attempts to determine the a An Empirical Study of Supreme Court Justice Pre-Appointment Experccuracy of these criticisms. The study collects and analyzes the annual pre-appolntment experiences of every Justice and ever}' sitting Supreme’ See PAn Empirical Study of Supreme Court Justice Pre-Appointment Exper
atrick J. Glen. Harvard and Yale Ascendant: The Legal Education of the Justices From Holmes to Kagan. 58 UCLA L. REV. DISCOURSE 129. 129-31 (2010) (ar^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41 An Empirical Study of Supreme Court Justice Pre-Appointment Exper. at B1 (arguing the opposite).^UNIVERSITY*TennesseeStKNOXVTUXUniversity of Tennessee, KnoxvilleTRACE: Tennessee Research and CreativeExchangeCollege of Law Faculty ScholarshipLaw41Gọi ngay
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