The Florida Bar

Florida Bar Journal

The Judiciary’s Class War

Book Reviews

by Glenn Harlan Reynolds

Cover image of The Judiciary's Class WarGlenn Harlan Reynolds, the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee, highlights the American judiciary’s inherent lack of diversity in his pithy pamphlet, The Judiciary’s Class War. And he’s not referencing race, gender, or sexual orientation.

Instead, Reynolds focuses on the country’s great class divide between “front-row kids,” the driven, mobile, well-educated political and business leaders of society; and the “back-row kids,” who care less about academics and more about home, faith, and family. These monikers were coined by Chris Arnade following the 2016 presidential election. Arnade, a self-avowed socialist and former Wall Street bond trader, has spent nearly a decade traveling the country’s forgotten corners photographing and chronicling plain, ordinary Americans.

The good professor had an epiphany one day during his con law class: while these so-called back-row kids could be elected in the legislative and executive branches of government, they could never infiltrate the judicial branch. In the judicial system, back-row kids are limited to serving on juries. Judges, at both the state and federal levels, are nearly always comprised of front-row kids. definition, they are members of the “educated elite” prone to espouse front-row worldviews.

The back-row kids seem forever barred. They would need an abundance of time, money, encouragement, and counsel to obtain undergraduate degrees, take the LSAT, and earn law degrees. They would enter a highly hierarchal domain where they would realize that all law degrees are not equal, and that, currently, one needs a law degree from an Ivy League school to have a shot at a U.S. Supreme Court appointment. This was not always the case.

Reynolds claims there are no law reviews supporting back-row viewpoints, and he cites several instances in which the “class sympathies” of Supreme Court justices have affected the outcome of case decisions. Supreme Court members have evolved into “moral umpires” on critical current social and political issues. Reynolds questions whether the justices will be able to “stand up against ruling-class, front row groupthink.” He notes that this remote, uber-elite judicial body enforces the U.S. Constitution unchecked by popular opinion or democratic elections.

Reynolds bemoans the lack of diversity among the nine, saying “it looks a lot more like an Ivy League faculty than like America as a whole.” Eight have served on a federal appellate court; four have been law school professors; none have served in the military; none have held a Cabinet post; and none have held elected office. The justices all have juris doctor degrees from Ivy-clad halls: four from Harvard, three from Yale, and one from Columbia. Five hail from the Northeast, two from the West, and only one was born in the South. None are from the Midwest.

To survive the “judicial confirmation wars,” a candidate must present a gold-plated resume with a noncontroversial record. The Judiciary’s Class War offers thought-provoking solutions to the current state of affairs, not the least of which is the suggestion for a president to look beyond the Ivys for top-notch talent. Perhaps it’s time to nominate some first-rate Floridians with degrees from Florida State, Florida, or the University of Miami.

 

Mary Beboutis an attorney with Dean, Mead and Dunbar. She earned her J.D. with high honors from the Florida State University College of Law.