Richard E. Neustadt Award), and Nixon’s Court (winner of the Erwin N. Griswold Prize).
McMahon applied the "Page 99 Test" to his new book, A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People, and reported the following:
Page 99 of A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People, begins the second of three main parts of the book. The title of Part II is: “Searching for Wizards of the Law: How the Rise of the Supreme Elite Further Distanced the Court from the American People.” To explain the development of this “supreme elite,” I open with a hypothetical job posting that reads:Learn more about A Supreme Court Unlike Any Other at the University of Chicago Press website.The president of the United States seeks applicants for the position of Supreme Court justice. Interested candidates must have graduated from an elite private undergraduate institution (preferably an Ivy League university), earned a JD from an elite private law school (preferably Harvard or Yale), and be around fifty years old. Ideal candidates will be a judge on the Court of Appeals, will have never sought elective office, and will have clerked for a Supreme Court justice. Professional experience in Washington, DC, is a significant plus. Ideological compatibility with the president is a must. All others need not apply.My reason for beginning this part of the book with this fake job ad is to highlight just how much the nature of the nominees chosen for the Court has changed in the last fifty-plus years. Today, nearly all the justices—those selected by both Republican and Democratic presidents—satisfy the requirements of this imagined job posting quoted above. As I note, justices of the past came from much more varied backgrounds and brought a distinctiveness to the Court that no longer exists. The result is a “Cookie-Cutter Court.” Later in this section of the book, I highlight two justices, Hugo L. Black and Thurgood Marshall, and suggest that neither of these legends of the law would be deemed “qualified” for the Court today. The nature of today’s justices—chosen from a tiny sliver of America—is just one of the ways this Supreme Court is unlike any other in American history. In Part I of the book, I discuss the altered nature of the confirmation process and the arrival of numerically minority justices, which I define as a justice “who won confirmation with a Senate majority, but with the support of senators who represented a numerical minority of voters.” In Part III, I highlight the increased salience of the Court and judicial issues in our elections and consider whether this fact might enhance its democratic legitimacy. I suggest that there is some support for this possibility, but it does not make up for the reduction of the Court’s legitimacy brought about by the two shifts I discuss in the first two parts of the book. I end with a concluding section that describes how a numerical minority rules the law and prevents progressive political change.
So, opening the book to page 99 would give you a good sense of a central component of the book’s argument. But, not surprisingly, you would miss other essential elements about the deepening of the Court’s “democracy gap,” which I define as “the distance between the Court and the electoral processes that endow it with democratic legitimacy.”
--Marshal Zeringue
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