Thinking about such things as the justices, their clerks, and the Court’s relationships with the media and politics, I find that much has changed since my days with Justice Black. A justice from the Warren Court would find much that is familiar, but there would be surprises, too. Some of the changes he would observe could be fairly described as paradoxical.
Today’s justices are more diverse than were those of the Warren era. Yet, in some respects, the Court’s members are more elite and homogeneous than were those of fifty years ago. A quick glance at the modern justices’ credentials and geographic backgrounds brings home the point. Moreover, the current Court is presented with thousands more petitions than was the Warren Court. While the number of clerks available to assist with the caseload has grown substantially, today’s high bench issues fewer opinions on the merits. The Warren Court faced criticism for its living constitutionalism and doing politics; today’s Court faces even lower approval ratings and seems to be more politically and ideologically driven and divided than ever.
Changes at the Court naturally invite musing on theories to identify the causes and effects. A simple explanation may be that external politics have affected the inner workings of the institution. Perhaps life at the Court is different in good part because politics outside the Court have become more polarized. The increased diversity on the bench, a decline in consensus, the combative nomination process, the hiring of clerks from ideologically compatible “feeder judges,” and media portrayals of the Court all carry political overtones. The Court issues opinions many of which fundamentally affect the lives of American citizens. It may also be that these same citizens—how they live, how they think, for whom they vote—have fundamentally altered the Court itself.