• Much Ado About Nothing: SCOTUS Qualifications Edition
  • May 26, 2010
  • Law Firm: Waller Lansden Dortch Davis LLP - Nashville Office
  • It appears that the most consistent comment regarding President Obama’s nomination of Elena Kagan to the United States Supreme Court is the fact that she has never before been a judge.  So what?

    To highlight how urgent a concern this is, the runner-up issue in the headlines seems to be the fact that Kagan’s confirmation would mark an end to the unbroken streak of at least one Protestant holding a seat on the high court.  The more informed commentators are pointing out that until recently, being a judge was not considered a necessary qualification for office space at One First Street, but generally no one is pointing out how pivotal non-judges have been during their tenures as Supreme Court Justices.

    In the interest of justice, here‘s a list of three non-judges who have nonetheless said what the law is from the bench of the Supreme Court:

    1. Chief Justice Earl Warren: formerly the Governor of California, Earl Warren ran straight from his nomination by Ike Eisenhower headlong into the issue of segregation.  The result: Brown v. Board of Education.  The rest is history.

    2. Associate Justice Robert Jackson: Jackson may not have worn a robe prior to his stint on the court, but he had some serious legal firepower on his resume. Sure, plenty of people have been the Attorney General, but how many of them prosecuted Nazi war criminals at Nuremburg?  

    3. Chief Justice John Marshall: that’s right, the most renowned justice of them all.  Where federalism was a ephemeral theory before, Chief Justice John Marshall gave it substance (e.g. McCulloch v. Maryland).  Where the role of the court was in question, he pointed out not a little bit forcefully that the role of the court is to say what the law is.  Need an illustration of how important this decision is to the Court and the nation today?  How about illustrations of William Marbury and James Madison - despite never serving on the Court, portraits of the litigants in the case cementing the Judiciary as a co-equal branch of the federal government grace either side of the Supreme Court’s private dining hall.