‘Front Row Kids’ and values have taken over our courts, by Glenn Reynolds.
In the wake of the 2016 presidential election, we heard a lot about America’s division into two mutually hostile camps: a largely coastal, urban party run by educated elites, and a largely rural and suburban “flyover country” party composed of people who did not attend elite schools and who do not see themselves as dependent on those who do. This divide is more fundamental than mere partisan identification, as there are Democrats and Republicans in both groups.
One of the best formulations of this division comes from photographer Chris Arnade, who has spent years documenting the lives of America’s forgotten classes.
In his characterization, America is split between the “Front Row Kids” — who did well in school; moved to managerial, financial or political jobs; and see themselves as the natural rulers of their fellow citizens — and the “Back Row Kids,” who placed less emphasis on school; and who resent the pretensions and bossiness of the Front Row Kids.
While teaching constitutional law after the election, it occurred to me that though the Back Row Kids can elect whomever they want as president, senators or representatives, there is one branch of the federal government (and all state governments) that is, more or less by its nature, limited to Front Row Kids: the judiciary. …
The judicial branch has been the domain of people who are not merely highly educated, but educated in the particular way that law schools educate. They are, in short, Front Row Kids of the first order.
After realizing that, my march through the decisions of the Warren court and its successors took on a different flavor. Again and again, seen through the lens of this class divide, important decisions look like decisions on behalf of the Front Row Kids.
In the famous Goldberg v. Kelly case granting due-process hearings before the termination of welfare benefits, the Supreme Court looks to have been holding on behalf of poor and uneducated people. Yet it turns out that the actual beneficiaries are the highly educated: social workers and lawyers who are paid out of welfare agency budgets. Likewise, the court’s treatment of everything from reproductive rights to legislative apportionment has reflected Front Row priorities.
Meanwhile, the Supreme Court has become more and more elite. Increasingly, judges aren’t just law school graduates, they’re graduates of the most elite law schools. And that goes double for the Supreme Court, where everyone is a graduate of Harvard or Yale except for Ruth Bader Ginsburg, who got her degree from that scrappy Ivy League upstart Columbia.
There’s nothing wrong with thoroughbreds as such, and if the court decided only narrow technical issues of law none of this would matter. But some of the most important social issues of the day come before the court, and given its members’ insularity, the problem is not just that Back Row America’s values won’t be considered — it’s that the court might not even realize it’s ignoring them.
Judicial activism now means that the US Supreme Court decides some government policies.
But the members of the Court are chosen for their narrow technical skills. They do not represent people, or have wide and diverse backgrounds.
The current tool was not designed for its new job. Something has to give.