Jeff Rosen proposed in this op-ed in the New York Times Sunday that Elena Kagan should strive to do justice to the seat she will be inheriting, which was held by Louis Brandeis in the mid twentieth century. For Rosen, this means developing a progressive jurisprudence on business and economic issues.
One question Rosen didn’t consider is this: if business and financial issues are so important in our era, why don’t the Supreme Court short lists ever seem to include business or financial experts? Brandeis himself came to the Court with both private (that is, business and commercial) and public law credentials. Others—most notably, William Douglas, a corporate bankruptcy scholar (heaven forbid!), who joined the Court in 1939—had even more business law expertise. Why isn’t President Obama—any more than President Bush before him—tapping into this kind of expertise?
One answer, I think, is that the networks that lead to the Supreme Court tend to be thin on business and financial experts. Perhaps because of the role the Supreme Court played on Civil Rights issues in the second half of the 20th Century, the very best students—the ones who are angling for clerkships with Supreme Court justices—often seem to focus heavily on Constitutional and administrative law. These students, many of whom go on to prominent teaching or legal careers, are the ones who are most likely to emerge as possible Supreme Court Justices two or three decades later.
Whatever the reason, I think we are entering a period—much like the 1930s and 1940s—when business and financial expertise are going to be crucially important on the Supreme Court. Just imagine all of the judicial challenges to the new financial reform legislation if, as seems all but certain, it is enacted. The current Court seems far from ideal for handling these cases.
Don’t worry. I’m not campaigning for the Supreme Court myself. There are few jobs for which I would be less qualified. But some of my best friends might make very good Supreme Court justices.