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Wednesday, September 08, 2010

Supreme Youth

Since 1900, no Supreme Court justice (nor any nominee) has been under the age of 40.

One reason may be politics.  Supreme Court justices sit for life, and a younger justice will likely serve a longer term.   Political opponents of the nominating president will be more hostile to a younger nominee.  Alternatively, the president may be concerned that a young justice might, over a long career, drift in an undesirable political direction. 

Of course, politics aren’t the whole story.  There are two immediately obvious substantive reasons why we don’t see young nominees: inexperience and small sample size. 

The inexperience concern is the worry that young jurists lack sufficient life and/or judging experience to be effective justices.  The sample size concern is the worry that however brilliant a young potential nominee may seem, his or her track record is too short to be reliable evidence of the exceptional judicial quality we expect of justices.   They’re different objections.  The latter worries about whether we can know Young Nominee A is good enough; the former worries about whether Young Nominee A is actually good enough.  Neither is necessarily a winner: maybe only a few years of judicial experience can reliably indicate jurisprudential quality, and maybe too much life experience in the same field, e.g., big firm litigation or government practice, hardens the mind and thus diminishes rather than enhances adjudicative ability.

One (to me) entertaining way to assess the attractiveness of Supreme Youth is to ask: would the path of the law be better, worse, or the same if we had one or more justices in their thirties?  Let’s isolate the youth issue by framing the question such that we’re talking about the path of the law in the period in which the Imaginary Young Justice is in his/her thirties and early forties -- in other words, is the IYJ good or bad for the path of the law in that period, compared to a grey-haired alternative?  

Posted by Brendan Maher on September 8, 2010 at 12:48 AM | Permalink

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