1.) Franklin Delano Roosevelt was widely considered the opposite of a "sparkling intellect", or even much of a champion of the working man, basically right up to his election to the presidency. What he was extremely good at was leading people, seeing what citizens needed--and anticipating/planning ahead, not just on a national but global scale. Something to think about.
2.) Like all viewpoints, the points raised in this article contain exceptions. There are situations when the Biden approach of return-to-normalcy and respecting elite institutional norms is actually critical.
I applaud Matt for not mentioning the FBI, or advocating for preserving Trump's busted norm concerning the FBI, here.
I’m still surprised the epidemiologists said that about the protests. Follow the experts has jumped the shark. Not sure that’s a good thing.
I think Breyer and Garland are just moderates as the endorsement of the moderate wing of the party is required (for senate confirmation). Or that was previously the case. The Squad may have different ideas, which may mean that we will continue our dysfunction even though Dems now control all three branches. The filibuster just has to go. It makes governing such a clusterfuck.
Can you say more why very high intelligence isn't important for a Supreme Court justice? The SC is deciding only the hardest and most important cases. If the cases weren't hard, they wouldn't end up at the SC! On the podcast, and here (albeit to a lesser extent), you seem to suggest that SC justices are just making political decisions, and very high intelligence isn't required to know what the conservative or progressive side is on SC cases. But that's not a tenable conception of how the SC works: the vast majority of cases are not split along partisan lines. Anyhow, I don't want to attack a straw man but I'd be interested to hear more about your thinking here.
How do you reconcile your argument that liberals tend to focus on qualifications in legal appointments whereas conservatives care about partisanship with what seems to be the opposite dynamic in legal discourse? Liberals are much more likely to say that all law is just politics / outcomes driven. Conservatives, on the other hand, are more likely to express the view that there is some form of legal reasoning underlying decisions.
I would normally qualify this kind of observation but I feel pretty strongly that I’ve accurately characterised the conversation within law schools at least. This isn’t necessarily to say that each is actually doing exactly that, but I definitely think this what each says they’re doing
Speaking as a "I'm a big liberal!"/corporate lawyer who went to fancy law school and this all hits home on, a few points: 1. Many conservatives are hacks, but there are plenty who legitimately are at the top of the law school/law firm pyramid. Your essay implies they only elevate the hacks and fools -- not always true. Many really are great at the practice of law and happen to be extreme partisans. So don't underestimate them.
2. You are 100% right that Constitutional law, and law generally, is just not that hard. It's not applied math or physics. That's why so many people opine on it. The ins and outs of doctrine, and the intricacies of procedure, all require experience to master (law school is basically worthless on these things). So you do need to go to law school/hire a lawyer etc if you want to bring a lawsuit. But that's the trade of law, not the part we all enjoy debating: what are rights, what values should law embody, etc. Those value-fights are ones that most any educated person can participate in.
3. One thing you don't note is the extent to which law school, and legal practice generally, indoctrinate lawyers about how fucking virtuous the RULE OF LAW is. Even when law school imparts a sort of self-conscious understanding of fundamental indeterminacy of law (e.g. critical legal studies), even using a critical lens the message you take away is that lawyers can fight for justice. Its a powerful feeling, but it also makes lawyers believe they are above vulgar partisan politics, and instead are pursuing something nobler.
I'd add that legal institutional capture is not limited to judicial matters. Politics in general is dominated by lawyers. I remember going to a talk by a social science professor who worked in the Obama administration. He talked about how surprising it was to see how most decisions were made. He claimed that because the legal profession so dominated the policy sphere, the way that they made decisions was by making a list of the arguments for and against a policy choice and then going with the side with the most entries. He seemed to think that government would benefit from more statistically minded people if only to increase the rigor of the decision-making.
I'm surprised- my reading of the Noah Feldman interview was not at all that Breyer "shouldn't retire." Far from it. This seems like at best a misunderstanding of what Feldman said, and at worst a click-baity summary of a nuanced position.
My layperson summary is Feldman knows that Breyer knows it would be better for the policy of this country if he retires and a Biden-nominated justice is confirmed in the next year, but he also greatly values the idea of non-partisanship among the Justices. Simply bowing to the external pressure of Democrats undercuts that value, and the louder the voices get, the more that value is undercut. It puts Breyer in a difficult position, and much like MY's idea about the "Secret Congress", it would probably be better for Breyer, the court, (IMHO) the country, and certainly the Democratic Party if everyone just shut the hell up and let Breyer retire because he's 82, not because everyone is screaming at him to quit. I agree with Feldman that those values are important and powerful, even if not codified in any law or explicit policy.
He's also almost definitely going to retire next summer, which is the normal timing for Supreme Court Justices regardless of ideology. Some people are just having meltdowns because they feel traumatized by Ginsburg, which was a different situation.
There were a lot of lawyers at my University who are always worried the court would pick another William Douglas, a man who they agreed with on most issues but who was a morally terrible person and a lazy jurist who's opinions didn't change intellectual or legal thought much. I always thought that while you should avoid a womanizing domestic abuser, on the lazy part he still put one vote toward liberal causes and that's all that mattered, and he was important in getting a lot of liberal decisions decided.
Right, and that's why it's important to try to pick people with "sparkling intellect" for the Court. The job isn't just to supply a reliable vote, like some backbencher in Congress.
It's a high profile job that in the right hands allows a justice to be a leading thinker and writer - a public intellectual even - who can change minds and shape the terms of the debate on issues that matter.
And you think Douglas didn't do that? I've never read a Supreme Court document (honestly not sure what they are called) so I have no idea if he was lazy but his 40 years on the court were transformative in a way that would not have been had the court had less Douglas and more Scalia. We'd definitely be a worse country with more poverty, less environmental protection and more racial strife.
I think this is especially pronounced when it comes to value judgments about what's essential. Racial justice is really, really important. Full stop. But church is also really, really important, if you're religious. If you're a conservative Roman Catholic (or even a serious, practicing liberal Roman Catholic like Biden), taking Communion is essential to your spiritual health!
Interesting article. One thing that I would be interested in:
does anybody know why credentialed experts in many fields skew so far left? A lot of people just chalk it up to educational polarization without any further insight. But I think Trump got like 40% of the two party college-educated vote share. This stat says Republicans got 34% of the vote in the 2018 midterms among those who had a terminal degree. That would seem to leave 10s of millions of conservative people with high levels of expertise... but that doesn't seem to work out. https://www.statista.com/statistics/940424/2018-midterm-election-exit-polls-votes-by-educational-attainment/
For scientists, I think a lot of it has to do with the Republican party becoming very hostile to atheists in the '80's and '90's. Most scientists are atheists and most people don't want to be in a party that basically holds them as morally defective compared to, say a bigoted religious figure who steals from his parishoners. Biologists were also pretty appalled by the pushing of creationism. Once climate change denial became nearly universal in the Republican party, there wasn't much chance of most scientists wanting to support the Republicans.
On the other hand, now that the Republican party is less hostile to people who aren't religious and some Republicans do accept climate change and are willing to have the country take market-based steps to limit carbon emissions, that may change.
I find Matt's position on this issue genuinely confusing. Can he (or someone) elaborate on why
"the putative expertise at hand here is largely fake" and "the professors like to think of constitutional law as somehow similar to solving difficult math problems. But it just isn’t".
I am not a lawyer myself, but I can't imagine that - in a field which can involve extremely abstruse arguments and requires familiarity with a huge volume of precedent - experts with a "sparkling intellect" wouldn't perform better at understanding the full scope of the problem and delivering decisions which are true to the underlying principles of our legal system.
Is the issue here that the view of Supreme Court decisions boils down to a partisan "liberal decisions good, conservative decisions bad"?
You need a certain level of competence, skill, and experience/knowledge to be a good Supreme Court Justice, but at a certain point that doesn’t matter anymore.
Like, there are only nine Supreme Court seats for a country with hundreds of millions of people on it. Even the highest standards you could come up with would probably leave you with thousands of good candidates.
How you pick from those candidates should be based on ideology/values/anticipated rulings, because I doubt there is much difference between the 100th or even 1000th best judicial mind and the #1 best in terms of skill.
“In a field which can involve extremely abstruse arguments and requires familiarity with a huge volume of precedent - experts with a "sparkling intellect" wouldn't perform better at understanding the full scope of the problem and delivering decisions which are true to the underlying principles of our legal system.”
I graduated from a fancy law school pretty recently. I did fine, but no one would call me a “sparkling legal mind.” The litigation work I do now involves endless hours of research and meeting with a bunch of other lawyers to decide how we’re going to approach very specific issues before the court. There’s not really that much opportunity for solo geniuses to get out there to do their solo genius thing. I am very good at this because my training was good and thorough enough that I basically know the major structures of the law and how it all works. Except from some pretty niche specialists in their field of expertise, very few lawyers, even sparkly ones, “know the law”. Everybody has to look it up all the time. Everything is an argument. There’s just no “right” answer, pretty much ever. There are better answers, worse answers, and wrong answers. My ultimate point is that I think Matt and Maya Sen are correct that “sparkling intellect” is completely overrated in this world.
Big firms generally aren’t actually that picky, with some exceptions obviously. Depends in part on practice area—tax specialists and appellate litigators are stereotypically the smartest guys in the room.
I suspect in many cases what they're really selecting for is an ability and willingness to work incredibly long hours, but thanks to the signals available (i.e. graduation at the top of a top law school) and a cultural aversion to admitting you're just looking for someone to work 100 hours a week, that dimension and intellect collapse into each other.
The other side of it is just to note how much money is at stake in this field - when the quality of your lawyers can literally mean billions of dollars lost or saved for some clients, you're going to see the profession stratify, even if the incremental benefit is low.
The Constitution is 6,000 words of fairly modern English. It doesn’t say jack about abortion. But the temple priests pretend it does so they can engage in constitutional thaumaturgy.
Generally speaking, a good lawyer is an artisan who can persuade judges and juries. He can predict outcomes that lay people cannot. The word games of the temple priests have little to do with routine lawyering. There is such a thing as persuasiveness and, if you have a criminal case or a big dispute, it’s worth paying for.
Basically it's a position that does not survive first contact with any of the millions of non-impressive lawyers out there.
Years ago I once read a blog commenter aptly describe The Economist magazine like so: "I always wondered how it could be possible that the magazine's coverage of the rest of the world was so good when its coverage of America was so bad. I finally realized that the foreign coverage is probably terrible too: I just had no way of knowing." I'm kind of reminded of that blog commenter right now.
I hope Matt does not use the same math about minority doctors as he does federal judges to assess quality of care.
Two things come to mind here:
1.) Franklin Delano Roosevelt was widely considered the opposite of a "sparkling intellect", or even much of a champion of the working man, basically right up to his election to the presidency. What he was extremely good at was leading people, seeing what citizens needed--and anticipating/planning ahead, not just on a national but global scale. Something to think about.
2.) Like all viewpoints, the points raised in this article contain exceptions. There are situations when the Biden approach of return-to-normalcy and respecting elite institutional norms is actually critical.
I applaud Matt for not mentioning the FBI, or advocating for preserving Trump's busted norm concerning the FBI, here.
I’m still surprised the epidemiologists said that about the protests. Follow the experts has jumped the shark. Not sure that’s a good thing.
I think Breyer and Garland are just moderates as the endorsement of the moderate wing of the party is required (for senate confirmation). Or that was previously the case. The Squad may have different ideas, which may mean that we will continue our dysfunction even though Dems now control all three branches. The filibuster just has to go. It makes governing such a clusterfuck.
Or really, the exerts have jumped the shark.
Can you say more why very high intelligence isn't important for a Supreme Court justice? The SC is deciding only the hardest and most important cases. If the cases weren't hard, they wouldn't end up at the SC! On the podcast, and here (albeit to a lesser extent), you seem to suggest that SC justices are just making political decisions, and very high intelligence isn't required to know what the conservative or progressive side is on SC cases. But that's not a tenable conception of how the SC works: the vast majority of cases are not split along partisan lines. Anyhow, I don't want to attack a straw man but I'd be interested to hear more about your thinking here.
Related: https://slatestarcodex.com/2017/05/01/neutral-vs-conservative-the-eternal-struggle/
I'm so glad you're picking this fight. Thank you.
How do you reconcile your argument that liberals tend to focus on qualifications in legal appointments whereas conservatives care about partisanship with what seems to be the opposite dynamic in legal discourse? Liberals are much more likely to say that all law is just politics / outcomes driven. Conservatives, on the other hand, are more likely to express the view that there is some form of legal reasoning underlying decisions.
I would normally qualify this kind of observation but I feel pretty strongly that I’ve accurately characterised the conversation within law schools at least. This isn’t necessarily to say that each is actually doing exactly that, but I definitely think this what each says they’re doing
Speaking as a "I'm a big liberal!"/corporate lawyer who went to fancy law school and this all hits home on, a few points: 1. Many conservatives are hacks, but there are plenty who legitimately are at the top of the law school/law firm pyramid. Your essay implies they only elevate the hacks and fools -- not always true. Many really are great at the practice of law and happen to be extreme partisans. So don't underestimate them.
2. You are 100% right that Constitutional law, and law generally, is just not that hard. It's not applied math or physics. That's why so many people opine on it. The ins and outs of doctrine, and the intricacies of procedure, all require experience to master (law school is basically worthless on these things). So you do need to go to law school/hire a lawyer etc if you want to bring a lawsuit. But that's the trade of law, not the part we all enjoy debating: what are rights, what values should law embody, etc. Those value-fights are ones that most any educated person can participate in.
3. One thing you don't note is the extent to which law school, and legal practice generally, indoctrinate lawyers about how fucking virtuous the RULE OF LAW is. Even when law school imparts a sort of self-conscious understanding of fundamental indeterminacy of law (e.g. critical legal studies), even using a critical lens the message you take away is that lawyers can fight for justice. Its a powerful feeling, but it also makes lawyers believe they are above vulgar partisan politics, and instead are pursuing something nobler.
3.
I'd add that legal institutional capture is not limited to judicial matters. Politics in general is dominated by lawyers. I remember going to a talk by a social science professor who worked in the Obama administration. He talked about how surprising it was to see how most decisions were made. He claimed that because the legal profession so dominated the policy sphere, the way that they made decisions was by making a list of the arguments for and against a policy choice and then going with the side with the most entries. He seemed to think that government would benefit from more statistically minded people if only to increase the rigor of the decision-making.
Are we at war?
January 6th sure seems like the potential beginning of that.
I'm surprised- my reading of the Noah Feldman interview was not at all that Breyer "shouldn't retire." Far from it. This seems like at best a misunderstanding of what Feldman said, and at worst a click-baity summary of a nuanced position.
My layperson summary is Feldman knows that Breyer knows it would be better for the policy of this country if he retires and a Biden-nominated justice is confirmed in the next year, but he also greatly values the idea of non-partisanship among the Justices. Simply bowing to the external pressure of Democrats undercuts that value, and the louder the voices get, the more that value is undercut. It puts Breyer in a difficult position, and much like MY's idea about the "Secret Congress", it would probably be better for Breyer, the court, (IMHO) the country, and certainly the Democratic Party if everyone just shut the hell up and let Breyer retire because he's 82, not because everyone is screaming at him to quit. I agree with Feldman that those values are important and powerful, even if not codified in any law or explicit policy.
He's also almost definitely going to retire next summer, which is the normal timing for Supreme Court Justices regardless of ideology. Some people are just having meltdowns because they feel traumatized by Ginsburg, which was a different situation.
There were a lot of lawyers at my University who are always worried the court would pick another William Douglas, a man who they agreed with on most issues but who was a morally terrible person and a lazy jurist who's opinions didn't change intellectual or legal thought much. I always thought that while you should avoid a womanizing domestic abuser, on the lazy part he still put one vote toward liberal causes and that's all that mattered, and he was important in getting a lot of liberal decisions decided.
Right, and that's why it's important to try to pick people with "sparkling intellect" for the Court. The job isn't just to supply a reliable vote, like some backbencher in Congress.
It's a high profile job that in the right hands allows a justice to be a leading thinker and writer - a public intellectual even - who can change minds and shape the terms of the debate on issues that matter.
And you think Douglas didn't do that? I've never read a Supreme Court document (honestly not sure what they are called) so I have no idea if he was lazy but his 40 years on the court were transformative in a way that would not have been had the court had less Douglas and more Scalia. We'd definitely be a worse country with more poverty, less environmental protection and more racial strife.
He would kind of just make stuff up.
I think this is especially pronounced when it comes to value judgments about what's essential. Racial justice is really, really important. Full stop. But church is also really, really important, if you're religious. If you're a conservative Roman Catholic (or even a serious, practicing liberal Roman Catholic like Biden), taking Communion is essential to your spiritual health!
Interesting article. One thing that I would be interested in:
does anybody know why credentialed experts in many fields skew so far left? A lot of people just chalk it up to educational polarization without any further insight. But I think Trump got like 40% of the two party college-educated vote share. This stat says Republicans got 34% of the vote in the 2018 midterms among those who had a terminal degree. That would seem to leave 10s of millions of conservative people with high levels of expertise... but that doesn't seem to work out. https://www.statista.com/statistics/940424/2018-midterm-election-exit-polls-votes-by-educational-attainment/
For scientists, I think a lot of it has to do with the Republican party becoming very hostile to atheists in the '80's and '90's. Most scientists are atheists and most people don't want to be in a party that basically holds them as morally defective compared to, say a bigoted religious figure who steals from his parishoners. Biologists were also pretty appalled by the pushing of creationism. Once climate change denial became nearly universal in the Republican party, there wasn't much chance of most scientists wanting to support the Republicans.
On the other hand, now that the Republican party is less hostile to people who aren't religious and some Republicans do accept climate change and are willing to have the country take market-based steps to limit carbon emissions, that may change.
I find Matt's position on this issue genuinely confusing. Can he (or someone) elaborate on why
"the putative expertise at hand here is largely fake" and "the professors like to think of constitutional law as somehow similar to solving difficult math problems. But it just isn’t".
I am not a lawyer myself, but I can't imagine that - in a field which can involve extremely abstruse arguments and requires familiarity with a huge volume of precedent - experts with a "sparkling intellect" wouldn't perform better at understanding the full scope of the problem and delivering decisions which are true to the underlying principles of our legal system.
Is the issue here that the view of Supreme Court decisions boils down to a partisan "liberal decisions good, conservative decisions bad"?
You need a certain level of competence, skill, and experience/knowledge to be a good Supreme Court Justice, but at a certain point that doesn’t matter anymore.
Like, there are only nine Supreme Court seats for a country with hundreds of millions of people on it. Even the highest standards you could come up with would probably leave you with thousands of good candidates.
How you pick from those candidates should be based on ideology/values/anticipated rulings, because I doubt there is much difference between the 100th or even 1000th best judicial mind and the #1 best in terms of skill.
“In a field which can involve extremely abstruse arguments and requires familiarity with a huge volume of precedent - experts with a "sparkling intellect" wouldn't perform better at understanding the full scope of the problem and delivering decisions which are true to the underlying principles of our legal system.”
I graduated from a fancy law school pretty recently. I did fine, but no one would call me a “sparkling legal mind.” The litigation work I do now involves endless hours of research and meeting with a bunch of other lawyers to decide how we’re going to approach very specific issues before the court. There’s not really that much opportunity for solo geniuses to get out there to do their solo genius thing. I am very good at this because my training was good and thorough enough that I basically know the major structures of the law and how it all works. Except from some pretty niche specialists in their field of expertise, very few lawyers, even sparkly ones, “know the law”. Everybody has to look it up all the time. Everything is an argument. There’s just no “right” answer, pretty much ever. There are better answers, worse answers, and wrong answers. My ultimate point is that I think Matt and Maya Sen are correct that “sparkling intellect” is completely overrated in this world.
Big firms generally aren’t actually that picky, with some exceptions obviously. Depends in part on practice area—tax specialists and appellate litigators are stereotypically the smartest guys in the room.
I suspect in many cases what they're really selecting for is an ability and willingness to work incredibly long hours, but thanks to the signals available (i.e. graduation at the top of a top law school) and a cultural aversion to admitting you're just looking for someone to work 100 hours a week, that dimension and intellect collapse into each other.
The other side of it is just to note how much money is at stake in this field - when the quality of your lawyers can literally mean billions of dollars lost or saved for some clients, you're going to see the profession stratify, even if the incremental benefit is low.
The Constitution is 6,000 words of fairly modern English. It doesn’t say jack about abortion. But the temple priests pretend it does so they can engage in constitutional thaumaturgy.
Generally speaking, a good lawyer is an artisan who can persuade judges and juries. He can predict outcomes that lay people cannot. The word games of the temple priests have little to do with routine lawyering. There is such a thing as persuasiveness and, if you have a criminal case or a big dispute, it’s worth paying for.
Basically it's a position that does not survive first contact with any of the millions of non-impressive lawyers out there.
Years ago I once read a blog commenter aptly describe The Economist magazine like so: "I always wondered how it could be possible that the magazine's coverage of the rest of the world was so good when its coverage of America was so bad. I finally realized that the foreign coverage is probably terrible too: I just had no way of knowing." I'm kind of reminded of that blog commenter right now.
The Economist's US coverage isn't bad imo
This was a while ago. I haven't read it in a number of years. Maybe it got better.
I suppose it's case-in-point to care about this distinction, but Katyal was only an acting solicitor general