April 15, 2010
Adding Business Depth to the Supreme Court Bench
Posted by Erik Gerding

With a Supreme Court vacancy, people are coming out of the woodwork with what the Court would be missing when Justice Stevens retires, including a Protestant, someone (other than Kennedy) not from an appeals court on Amtraks' Northeast Corridor, or someone who did not graduate from Yale or Harvard Law. Add to the mix concerns about diversity along the lines of gender, race/ethnicity, and sexual orientation. To say nothing of having a justice with experience as an elected official or as a trial judge.

What about business law background? Gordon had an interesting post last year on whether it was time to have a Supreme Court justice with a transactional background. To my knowledge, the Court has not had a justice with significant transactional experience since Lewis Powell retired. Experience in transactional law would not only round out the substantive knowledge of a court chocked full of litigators and public law experts, it might also bring some perspective of how attorneys and citizens plan, bargain, and just plain old cope in the shadow of Supreme Court rulings. There might be some collateral benefits of temperament too. Part of Justice Powell's ability to find consensus might be attributed to his work as a corporate lawyer (although other elements of his background surely contributed too).

Having a business law background doesn't necessarily make one "conservative," even on business law issues.  Example: William O. Douglas.  Here is another case in point: there have been some internet rumours that Elizabeth Warren might be being considered. 

Here is another idea: Warren's colleague at Harvard Law, Professor Howell E. Jackson. He is an expert on financial regulation and would be the first justice with an MBA (although that might not be an asset in today's climate). His resume would fit right in with some of the other rumoured short listers: former (acting) Dean of Harvard, former Supreme Court clerk, intellectual heft. And there is precedent! He would be the second Justice Howell E. Jackson! (Full disclosure (in the spirit of the folks at Slate): Jackson gave me my lowest grade in law school. It was deserved.)

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