An interesting statistical study over at the SCOTUS blog, trying to make sense of a trend towards greater unanimity in what should be a very divided Supreme Court.
I’ll suggest a couple of completely unprovable reasons.
One may be that when the members of the SCOTUS actually do flatly disagree on an outcome, so much energy goes into the argument (I mean, read a few Scalia dissents, just for fun) that there’s a desire by both sides to spend less energy where the disagreement are not so sharp, or seen as not as important. In other words where they think the can agree the justices are more anxious to do that because there’s only so much written venom anyone wants to hurl.
A second possibility, and this requires a lot more fleshing out than I’m going to do this morning, is that the insularity of the Supreme Court and its establishment courtiers has reached, or is reaching an apogee.
Let me explain this as best I can through an example: the rise of Cheryl Ann Krause as a federal appellate judge.
I don’t want to be in any way unkind, or to make more of this than it is, and although I think there’s considerable significance to what I am about to point out I’m sure Judge Krause is very bright and probably delightful in a hundred different ways. Indeed if you look around the web you’ll notice that no one has had anything bad to say about her and theUnited States Senate actually broke from its moratorium on approving Obama judicial nominees to approve her and get her into office. Her “credentials” are impeccable: top of her class at Stanford Law – Stanford!* – stint at US attorney’s office, stints at legal academia, stints at big law firms.
But still. In an important sense she’s 46 years old and has never really done anything, other than accumulate honor after honor and credential after credential. She has probably never tried a case to a jury, but if she did it was almost certainly as a federal prosecutor which in a lot of ways doesn’t count. The primary quality required to so accumulate is to relentlessly focus on so accumulating from an early age. It is entirely possible that Judge Krause has never had a thought she could truly call her own, having been too busy absorbing what her superiors wanted her to absorb. She’s been richly rewarded for it, in a manner of speaking. She has punched all the right tickets, but she has never even served as a federal trial judge.
She could easily be on the Supreme Court in a couple of years.
If and when she gets there, it may also be that her only true conviction, probably held more or less unconsciously, is that our system is wonderful close to the point of being flawless. It rewards all the right people – like her – and punishes all the right people, too. How could it be otherwise?
To say that she will have a strong establishmentarian bias is a grotesque understatement.
So in an important sense, when a lawyer appears before her representing an individual who has a quarrel with a big institution – bank, insurance company, government – he might as well be an alien from another planet. This is a woman who has never had a disagreement with an institution in her life. She cannot comprehend such a thing except in the sense of considering it wrongful ab initio. And this explains a lot about our judiciary and our system, because she’s but a representative sample.
In other words, the increasing prevalence of SCOTUS unanimity may be due to the increasing class homogeneity of the federal judiciary and the SCOTUS in particular. In a case where the class differential of the parties is stark, maybe it’s also determinative, there being no lower status representative on the court itself.
Again, I could be a little unfair here. But I doubt it.
* It may be time to consider the disproportionate influence that certain institutions of higher learning have on the law by acquiring a near monopoly on Supreme Court members. Certainly, there is much to be said for academic achievement, which is reflected in being a high ranking graduate of Harvard or Yale or Stanford, etc. But it is possible to get too much of a good thing. Ultimately, these schools are governed and owned by a very small group of people with – of course – a lot in common with each other and little in common with anyone else. Cheryl Krause’s extraordinary appointment is a tribute to this disproportionate influence: the United States Senate made a special exception to its stalemate on judicial appointments just for her. I don’t actually object to her appointment; but I have a lot of reservations about the methodology by which she was confirmed.