A while back (before any nominations had been made), I mused that it might be better to pick a non-lawyer for the Supreme Court because the limited training of the Court assures incompetence in dealing with issues of textual critique (which is, at its heart, what Constitutional law is), philosophy, economics, etc. As the Supreme Court hasn't restricted itself to purely legal matters since Holmes (and probably before), we are ill-served by it. Scott Gosnell took exception to this, arguing that law should be left up to legal experts, and that the Court should be restricting itself to legal matters anyway. My original post was more of a random thought, but the more I thought about it, the more I began to suspect that the Court is now and has traditionally been incompetent to deal with matters beyond law. I now suspect that judicial restraint is only partially a protection against tyranny; it is more a protection against incompetence.
In the recent debate about GOP ivy league elitism, though, I have begun to suspect that the Court may be incompetent intellectually as well. Oh, I'm sure the justices are perfectly smart people who got good grades, but they are suffering from an intellectual provincialism. Most of the justices attended Harvard law during the same 10 year period ('56-'66). Of those who didn't were the late Renquist, who attended Harvard until 1950; O'Connor, who attended Stanford (at the same time as Renquist); Thomas, who attended Yale; and Stevens, who attended Northwestern. Roberts is another Harvard alumnus, where he attended in the late '70's.
No, I'm not arguing that Harvard is a bad school. I've known some real idiots from Harvard, but I've also known some really fine minds. Let us, for the sake of argument, accept the premise that Harvard is not only the best school in the world, but the best school in the history of the world [Note: Stop objecting, you! It's just for the sake of argument!].
Even were it the best school ever, it seems to me harmful to have the SCotUS made up primarily of people from this one place. The result is, I think, a kind of intellectual provincialism, in which all ideas are absurdly framed by the very limited shared perspective of one school. The phrase "every educated person knows..." takes on the meaning of "this is something that was repeated every semester by one professor at my school." Since most of the justices went to the school at the same time, they were influenced by the same tiny handful of professors. Why are legal arguments today framed the way that they are? I suspect that the reason has little to do with the merits of those paradigms -- rather, it probably has more to do with who was a professor of law at Harvard in the late 50's and early 60's.
Let me offer you an example from Troy University. For some reason, every undergraduate here knows Plato's Allegory of the Cave. I've never taught it, but all my students seem to know it, regardless of major. Somehow it fills the intellectual air here. Every semester in every literature class, some student can be counted upon to raise her hand and say, "it's just like Plato's Allegory of the Cave!" Everyone here has read Homer, knows the basics of the Trojan War (for obvious reasons) and knows the Allegory of the Cave. Yet they almost never know anything else about Plato.
Now, imagine that these same Troy students went on to become Supreme Court justices, and in fact, constituted a majority on the court. They would naturally think that the most important thing Plato wrote was the Allegory of the Cave -- not because anyone told them it was the most important thing, but because "everyone else" only knows that same thing.
The Renquist court was very, very narrowly educated, with only five schools supplying the education for nine people. I've often wondered why the Court seemed so intellectually provincial, so incapable of thinking past certain obvious boundaries. The battles in the Court were always framed in such limited ways, such as Original Intent vs. the Living Document. Haven't they an inkling of simple textual scholarship? I would wonder. The answer, I think, is that they probably don't, because their educations are of such limited field.
So, was Roberts all that brilliant when he appeared before the Court, or was he simply familiar with the shared Harvard provincialism of the justices?