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Academe And The Judiciary At Odds

Publication Date: 
September 03, 2013
The Chronicle of Higher Education
Richard A. Posner

Professor Michael McConnell is among a listing of American judges drawn from academe that appears in Richard A. Posner's recent Chronicle of Higher Education article "Academe and the Judiciary at Odds." 

The United States is unusual in the porousness of the membranes that separate the different branches of the legal profession. The judiciary, both federal and state, is a lateral-entry institution rather than a conventional civil service. And unlike the British lateral-entry judiciary (which, however, is loosening up and becoming more like ours), in which the judges are drawn from a narrow, homogeneous slice of the legal profession—namely, senior barristers—American judges are drawn from all branches of the profession, including the academic. Among appellate judges who came from academe are Oliver Wendell Holmes (although he had joined the Harvard Law School faculty only months before being appointed to the Supreme Judicial Court of Massachusetts, he had been doing academic writing for many years), Harlan Fiske Stone, William O. Douglas, Felix Frankfurter, Wiley Rutledge, Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan (U.S. Supreme Court); Calvert Magruder, Charles Clark, Joseph Sneed, Harry Edwards, Robert Bork, Ralph Winter, Frank Easterbrook, Stephen Williams, J. Harvie Wilkinson III, John Noonan, Douglas Ginsburg, S. Jay Plager, Kenneth Ripple, Guido Calabresi, Michael McConnell, William Fletcher, and Diane Wood (U.S. courts of appeals); and Roger Traynor, Hans Linde, Benjamin Kaplan, Robert Braucher, Ellen Peters, Charles Fried, and Goodwin Liu (state supreme courts). All those are appellate judges, but a number of distinguished federal district judges have been appointed from the academy as well, such as Jack Weinstein, Robert Keeton, and Louis Pollak. And these lists, which I've compiled without research, are not exhaustive.

One might think that with such a tradition of academics becoming judges, the gap between the academy and the judiciary would be small—and narrowing, because the trend in federal courts of appeals and the Supreme Court has been toward increasing recruitment from academia; four justices are former full-time law professors (Scalia, Ginsburg, Breyer, and Kagan), which is unprecedented. Actually the gap is widening. The reason is increased specialization. Suppose there are two adjacent fields, neither highly specialized. It would be easy enough to be conversant with both—even proficient in both—and to draw from both no matter which of the two fields one happened to be in. And that was once the case with academic law and judging. I mentioned that Holmes had done academic writing for many years before joining a law faculty. (His most important academic work—The Common Law, published in 1881—preceded his academic appointment.) He continued to do important academic writing after becoming a judge (notably the article "The Path of the Law"). Louis Brandeis, never a professor, wrote one of the most important law-review articles when he was in practice ("The Right of Privacy," nominally co-authored with Samuel Warren—but Brandeis wrote it all). Benjamin Cardozo, also never an academic (in fact, he left law school after two years, without graduating), wrote The Nature of the Judicial Process (1921)—a much-celebrated book, of academic quality—and other books and articles as well. Learned Hand and, above all other federal court of appeals judges, Henry Friendly, neither of whom had ever taught, wrote influential books and articles. This tradition of influential scholarship by judges who had not been law professors has waned.