“For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts, Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.”  So writes Adam Liptak, the supreme court correspondent of the New York Times.

"They laugh alike, they walk alike, at times they even talk alike ..."

It’s not clear why this is such a good thing, although I suppose homogeneity becomes much more attractive when everyone looks a lot like you.  It is unlikely that the composition of the high court has ever been so uniform as it is today.  Not only are all nine justices former federal appellate court judges, four of them served on the same circuit bench.  Indeed, only Anthony Kennedy and John Paul Stevens served in federal courts outside of the Washington-Philadelphia-New York triangle.  Granted, with the addition of a woman and a black man, the court’s group photo no longer looks exactly like the fortieth reunion of a Princeton eating club, but it could be a class reunion photo for Harvard Law School — after all, five of the justices graduated from there.

This is a far cry from the days when there was, unofficially, a “New York seat” or a “southern seat” or a “New England seat” or even a “Jewish seat” on the supreme court (there’s still a “Catholic seat,” to be sure, but it’s currently being occupied by five of the nine justices).  More disturbing, none of the justices has ever served as a trial court judge, despite the fact that the supreme court routinely reviews the performance of those judges and determines whether they made the right decisions — decisions that the justices themselves have never had to make.  It’s rather like having a sport where none of the referees has actually played the game.

For Roberts, though, the drab sameness of each justice’s climb up the career ladder is a feature, not a glitch.  In the eyes of the chief justice, the era in which supreme court justices were drawn from the ranks of state court judges (such as Sandra Day O’Connor), politicians (such as Hugo Black), distinguished members of the bar (such as Lewis Powell), or federal administrators (such as William O. Douglas) was just too … well, messy.  According to Liptak, Roberts, in his speech to the Rehnquist Center at the University of Arizona, criticized the previous era’s jurisprudence for its tendency “to inject policy and politics into an area properly reserved for the law.”  Better then, according to Roberts, to have jurists steeped in federal precedent, who have “a more legal perspective and less of a policy perspective.”

It is statements like these that can help us identify at least one of the major problems with having a supreme court bench composed entirely of former federal appeals court judges: a stunning disconnect from reality.  If Roberts truly believes that these kinds of justices are less likely to inject “policy and politics” into their decisions, he apparently is unfamiliar with the decision in Bush v. Gore.

Far from being merely disingenuous, it is simply inconceivable that a supreme court justice should think that the court’s decisions are not influenced by policy and politics, or that the justices do not, in a very real way, create policy as they fashion their decisions.  Perhaps the biggest problem isn’t that these justices inject policy and politics into their decisions, it’s that they do such a ham-handed job of it.  Having justices on the court who have actually held public office (currently, only Souter is a former high-level elected official) would, at the very least, contribute a little real-world policy-making experience to the court’s policy-making.