Yale constitutional law professor Akhil Reed Amar believes the Affordable Care Act is “easily and obviously constitutional.” His article in the latest issue of The Atlantic appears to be aimed at preserving ACA subsidies and protecting same-sex marriage.
With those caveats in mind, it’s still worthwhile to consider Amar’s argument that our nation’s highest court might benefit from adding viewpoints beyond those gained by people who earn undergraduate degrees from “elite colleges,” study law at Harvard or Yale, clerk for a Northeastern judge, then serve as a federal circuit-court judge. That’s been the background of every member of the U.S. Supreme Court since 2006.
But that was not the case in the nation’s past. Many justices came from other branches of government or even the private sector. Amar contends a range of perspectives can lead to better results.
One virtue of appointing federal appellate judges to the Court is that these highly judicialized folk are already masters at applying Supreme Court doctrine. After all, this is what circuit-court judges do every day: they study and apply what the Supreme Court has said about one legal issue or another. One problem, however, is that Supreme Court precedent can be dead wrong. Sometimes, in fact, it is baloney. And lower-court judges, who daily slice and eat this doctrinal baloney, may be ill-equipped to see it for what it is. Specifically, they may be inclined to think that judges are more right than they really are, and other branches of government, more wrong. A lower court’s job is to follow the Supreme Court’s precedents, whether right or wrong. But the Supreme Court’s job, in certain situations, is to correct its past mistakes—to overrule or depart from erroneous precedents. (Brown famously and gloriously abandoned Plessy v. Ferguson’s malodorous “separate but equal” doctrine.) Someone who has not spent his or her entire life reading Supreme Court cases—who has instead spent time thinking directly about the Constitution and also spent time in a nonjudicial branch of government with its own distinct constitutional perspectives and traditions—may be particularly good at knowing judicial baloney when he or she sees it.
