Earlier this week, Shane Reeves and Winston Williams published a thoughtful call for a national-security lawyer to be appointed to the Supreme Court. I certainly have no interest in degrading the career prospects for national-security lawyers and would be pleased to see one of the eminences of our field nominated. But I’m not convinced that there’s a particular need for a national-security specialist on the Court—nor even that this would be desirable. So in the spirit of friendly disagreement, I offer a few contrary thoughts.
First, Reeves and Williams invoke Justice Scalia’s observation in Obergefell, the same-sex-marriage case, that the Supreme Court’s roster of Ivy League lawyers from coastal states “is strikingly unrepresentative” of the country’s population. But Justice Scalia did not intend this to suggest, as even some expert observers have mistakenly concluded, that there should be greater “diversity” on the Court. No amount of “diversity” can cure the Court’s inherent lack of democratic legitimacy. Even if the Justices were a racial and religious mosaic; even if their expertise spanned every possible subject, from family law to bankruptcy; even if one seat were reserved for each region of the country, they would still be nine unelected lawyers.
Rather, Justice Scalia’s point was that a nine-member body that is not representative—and indeed was not intended to be representative—should not impose its subjective moral judgments on a vast, diverse nation of 300 million. On this view, diversity in se is not a reason to nominate a national-security lawyer, or any other breed of lawyer.
And while intuitively it would seem that the Court’s decision making in national-security cases would be improved if one of the Justices were a national-security expert, I’m not sure that necessarily follows.
For example, Reeves and Williams note that it is only by serving in the military or in a civilian national-security agency “that a lawyer becomes familiar with the realities underlying America’s national security policies.” That is surely true. But that deep familiarity—and attendant sympathy—to the unforgiving realities of the national-security mission could as easily warp the Court’s decisionmaking as refine it.
Justice Jackson, arguably the first national-security lawyer to serve on the Court, warned in Youngstown: “The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote….”
Familiarity with “the cause” of the national-security bureaucracy would arguably tend to exacerbate this tendency. And excessive sympathy with the exigencies of national security can be dangerous for courts. In Hirabayashi, the Court reasoned that a curfew targeting Americans of Japanese ancestry had to be “be appraised in the light of the conditions with which the President and Congress were confronted, conditions “peculiarly within the knowledge of the military authorities.” Similarly, in Korematsu, the Court infamously deferred to the judgment of military experts, who “feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”
These are extreme scenarios; not every case is Korematsu. Yet many of the Court’s recent national-security cases have similarly involved programs close to the edges of the law, programs that challenge core American notions of due process, individual rights, and accountable government. (Think Hamdi, Rasul, Hamdan, Boumediene, and Clapper.) These are cases in which there are weighty interests on both sides of the balance.
Let’s assume, however, that the stakes wouldn’t be so high—that our new national-security Justice would simply be applying a skilled hand to improve the craftsmanship of the Court’s national-security decisions. I’m still not sure that appointing a national-security specialist to the Court is necessary or even desirable. In my experience, the Court generally does not, and should not, defer to the doctrinal “expertise” of legal subspecialties. Patent law is a notable example. In recent years, the Court has had to trim back overly permissive (and thus anti-competitive) patent doctrines hatched by the specialists on the Federal Circuit and defended by the patent bar. Specialists naturally tend to credit the purity of their specialty’s intentions and the social utility of its work. There is value in having a generalist court, independent of the interests and predispositions of any specialty, police all of them.
But even if we accept arguendo that having a national-security lawyer on the Court would marginally improve the quality of its national-security opinions, it’s still not clear to me that there is a strong case for a national-security lawyer on the Court. The Supreme Court sees relatively few national-security-law cases. One could make a better argument for a patent lawyer or a securities lawyer—although, for reasons already stated, I trust generalists more than specialists to referee those areas of law. Another concern is that a national-security specialist, having labored for years within the narrow confines of our field, might lack attributes that are more relevant to the bulk of a Justice’s work: experience in the judicial system, an understanding of the rules of litigation, and familiarity with the many other areas of law that comprise the overwhelming majority of the docket.
Finally, even those few national-security cases that do reach the Court tend to be resolved on grounds that do not require a granular knowledge of security policy: standing, the political-question doctrine, the geographic scope of habeas corpus, and so forth. Others present straightforward questions of statutory or constitutional construction. A skilled judge can competently resolve these cases without having spent years mastering the intricacies of FISA or IHL. The highest use of that hard-won expertise is advising policymakers in the military, the civilian national-security agencies, and the Congress.
Whoever chooses the next Supreme Court justice—whether President Obama or his successor—it is more important that the nominee be a great jurist than a great national-security lawyer.