Needed: Pragmatists, not Professors

In his March 1 post on the Wall Street Journal Law Blog, Joe Palazzolo referenced a new study by University of Tennessee law professor Benjamin Barton. Palazzolo's title asked, "Is Wonkier Worse?"

The question refers to the Barton's finding that the Roberts court has spent a record amount of time as law professors in Ivy League schools rather than in private practice, trial judging, or (gulp) as elected politicians.
In fact, this is the first time in our nation's history that not a single justice has ever served in elected office, despite having spent a record amount of time in Washington. It is also the Court with the lowest amount of military service since 1937.

This time spent cloistered in white towers and -- if I may extend the metaphor -- under ideological seige, has limited the present court's development of "practical wisdom," Barton says.

So to Palazzolo's question, I would answer "yes," we need a more pragmatic, and less dogmatic, Supreme Court.
To illustrate, take the 2010 Citizens United decision. In yet another 5-4 decision, the Court overturned multiple laws that had previously placed a cap on campaign contributions and limited advertising. By eliminating such restrictions, the Court has opened the way for the "Super PACs" we have today.

These super-sized political action committees can now spend an unlimited amount of cash to promote (or villify) whomever they want, despite being nominally "independent." The Court's decision "that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption" strikes me as naive. Is a SuperPAC still considered "independent" when it's staffed by former aides, à la Mitt Romney's Restore Our Future? [Source]

Corruption is not limited to the quid pro quo arrangements. In politics, the key is access. If not, then why did George W. Bush resist releasing records of industry executives who worked on Dick Cheney's energy task force? [Source] After all, the visitors were registered voters, right? *Access* is the reason Washington lobbyists (and "consulting firms") employ so many former Congressmen. [Source: Georgetown University Press's Ethics of Lobbying]

As the April issue of Harper's put it, "The problem is that by putting such a price tag on the White House, we have imported market logic directly into politics." [Source] Given that 22 individuals and corporations were responsible for roughly half of the $63 million contributed to SuperPACs, I wouldn't call these donations "charitable" -- they're *investments.*  [Source]

Strictly speaking, I can see how limits on campaign contributions can limit someone's free speech rights. True, it's not one side's fault they've got lots of money. Yet the Court's majority in Citizens United should have foreseen the practical impact of its decision.

This summer the Court will decide on perhaps the most important and far-reaching piece of legislation in decades -- the Affordable Health Care Act (derisively referred to as Obamacare). While it would be nice to get a 9-0 decision as in Mayo v. Prometheus or Brown v. Board of Education, that's simply not going to happen.

Call me a pessimist, but one way or the other I expect another 5-4 decision -- something that neither convinces nor reassures the public. Despite the decades upon decades of legal wisdom found in the Supreme Court, our nation's most esteemed judges still treasure their individual interpretations over the institutional dignity of a unified decision.