On the Death of Bright Ideas in Legal Culture and How it Affects Who We Want on the High Court
Thursday, March 5, 2009 at 1:32PM
Sean Wilson in Legal Theory, e-mail discussion

(sent to conlawprof in reply to the suggestion that the Supreme Court would be better off it some non-lawyers were appointed. The theory, I think, is that it doesn't take any kind expertese to be a Supreme Court decider, at least not one that has anything to do with learning legal orthodoxy. My reply now follows).  

... one wonders if we shouldn't just put the lawyers on American Idol and let Paula and whoever that guy is be on the Court. Welcome to American culture.

No, seriously,  anyone who has studied both intellectual history and the relationship of jurisprudence to it, might say the following of Sandy's suggestion that the Supreme Court start including non-lawyers:

1. One of the most unfortunate things that happened to the academy was that those from the 60s generation (and their progeny) who went into liberal arts and legal education ended up wrecking the idea of contemplative epistemology.  One can see a clear symmetry between: (a) the rise of "deconstruction" in the academy in the 70s and the strong program in sociology; (b) the rise of the legal tantrum-schools in the 80s (critical this, critical that); (c) the rise of pragmatism in judging in 90s (posner, breyer); (d) the "attitude scholars" in political science and the otherwise empty theoretical picture that this club labors within; and (e) the people who say "hey let's put Mario Cuomo or George Will on the Court." One is only a breadth away from saying, "hey if if so-and-so can, why not Paula." "hey i can vote too," and why not a telephone bank? What fun it would be to have America call in the winner on the television.

2. At some point in time, someone has to seriously look at the silliness of this entire cultural strand of "thought" -- where it comes from and what are its political objectives. Once subsequent generations see this in proper context, there really can be only one real answer here: the model that should be used for the Court is selecting the best and brightest. And what needs to happen is that legal education either needs to be purged of the forces that obstruct the mind from finding better answers (obstruct the idea of the search altogether), or, perhaps, all appellate judges should be made to have Ph.Ds or some post-legal training of some kind. 

You know, one day, when the American academy awakens again, we may actually find that the Greeks are quite important to western life. We may actually find that contemplative structures are not willy nilly and that they play a vital role in the integrity of structured casuistry. That what we want are  philosophically predisposed, historically astute, legally-encyclopedic people who have gained some practical experience in delivering legal products to people in the system, to fulfill and discharge American government's oligarchic chamber. And that neither wisdom nor virtue comes from a plebiscite or from a theory of decision making predicated upon costumed (robed) politicians selecting their "social values" in a social ritual.

Let's try to go forward and not keep going "south."


Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org/
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

From: Sanford Levinson
To: LAWCOURT-L@tulane.edu
Sent: Thursday, March 5, 2009 11:58:28 AM
Subject: Re: the case against judicial experience

I share both the general admiration for Scott's op-ed and the belief
that it is unfair to pin the overemphasis on "judicial experience" on
Bill Clinton, who is well known to have thought seriously of Mario Cuomo
(who seems to have rejected the entreaties), Bruce Babbitt (who was
derailed because of the belief that it was more important to keep him at
Interior), and, some have suggested, George Mitchell.  It was Reagan,
after all, who appointed exclusively sitting judges, though one of them
was, of course, an Arizona state judge and not a federal judge.

I'm wondering if Scott would agree that the Supreme Court could use not
only someone without "judicial experience," but also a non-lawyer.  I
think one certainly has to be a lawyer to serve on a district or a
circuit court.  I'm not sure why legal training is necessary to be on
the Supreme Court.  Obviously, I'm not talking about nine non-lawyers,
but, rather, the potential wisdom of appointing a single non-lawyer.
Consider, e.g., only Anthony Lewis, George Will, or Walter Murphy, to
name three distinguished commentators who are now, alas, too old to be


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