Joel Jacobsen

What would be the characteristics of an ideal U.S. Supreme Court?  First and foremost, a majority of the justices would have been trial judges for a minimum of five years each.  After about five years a trial judge has seen most of what there is to see and will have gotten a pretty good handle on the job.

A joke I heard ascribed to U.S. District Judge Bruce Black, but which is probably an ancient chestnut, has a law professor, an appellate judge and a trial judge together in a duck blind.  A flight of fowl appears on the horizon.  The law professor is first up.  He says, "Those look like ducks.  I think I'll have my work-study students collect some pertinent materials and over the summer maybe I'll see about working it up into a law review article ..."  and the birds are gone.

The next flight of birds appears on the horizon.  This time it's the appellate judge's shot.  He says, "Those look like ducks.  I think I'll have my clerk write a memo on it and then I'll circulate it to my colleagues and maybe next month we can discuss it in conference..." and the birds are gone.

Now it's the trial judge's turn.  The next flight of - BLAM!!!  "I hope those were ducks," he says to his startled colleagues.

That, I think, captures the essence of the trial judge's life.  Problems blow up out of nowhere, the lawyers' arguments are disjointed and emotional, you don't have any time to look anything up, the jury is waiting, the witness is staring at you ... and some appellate judge is going to say you abused your discretion for not having thought of something that didn't occur to anyone until nine months afterward.

A Supreme Court justices who has served at least five years on the trial court bench will understand something about the way courtrooms function.  He or she will try to craft clear rulings that don't require hours of study to understand, and will be able to foresee some of the unintended consequences of the ruling and take some sensible steps to contain them.  He or she will, in short, do a better job than a justice who lacks that experience.

An ideal Court would have a solid majority - at least six, I would hope - of former trial judges.  The current Court has exactly one, David Souter.  The other eight often don't know what they're doing, not because there's anything wrong with them but because they have no experience to draw on, just as I wouldn't know what I was doing if I found myself in bankruptcy court, or in the middle of a commercial property closing.

An ideal Court would have a majority of members who served in the state judiciary.  It's natural for people who devote years of their lives to any bureaucracy to identify with it.  As Jefferson wrote in 1820, "Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. " 

So the last thing we should want is a Supreme Court composed of former federal appellate judges, who would naturally tend to decide every case in the way that enhances the power and prestige of federal judges.  Former state court judges, by contrast, will have conflicting loyalties: to their former bureaucracies and to their current one.

But, sadly, all nine of the current justices are federal judicial bureaucrats.  Souter is the only one of the bunch that ever served in a state judiciary.

On an ideal Supreme Court, several (at least) of the justices would be experienced in criminal law.  It doesn't matter if they gained their experience on the defense or prosecution side, as long as we weed out the true believers.  Criminal law is, far and away, the most important thing our courts do.  People die on a daily basis as a result of judicial decisions.  Many other people are spared death or pain because of other, better judicial decisions.  Innocent people are imprisoned, guilty people are set free. 

Not only are the stakes often extremely high, but it's a complicated field made more complicated on a yearly basis by Supreme Court rulings.  (We can expect a bunch of bombshells in the next week or so, as the justices wrap up before their three-month summer break.)   The Supreme Court regularly issues new decisions that totally remake the face of criminal law - civil practitioners have no idea how everything can, and routinely does, change overnight.

And so how many of our current nine justices have a criminal law background?  You guessed it. Justice Souter, take another bow.  The guy really is a loner.

What we have today, in short, is something very close to the photo negative of an ideal Supreme Court.  My personal belief is that you could can all nine of them and replace them with any nine federal appeals court justices chosen at random and no one would notice a difference.  Except the reporters, who'd miss Scalia.