From Aristocrats to Meritocrats: A History of Jurisprudential Legitimation

• In Event: Poster Session: Political Thought and Philosophy II

Abstract

In the United States, the appointment of Supreme Court Justices has become a ritual spectacle: Experts attest to the nominee’s exceptional academic and professional credentials, while nominees avoid admitting jurisprudential commitments.

Although this focus on judges’ resumes might seem far-removed from the methods of legal reasoning they deploy, Judges—and, a fortiori, jurisprudence—have always depended on seemingly extraneous social identities and cultural ideals. The expectation of structural legitimacy and popular adherence to the Court’s decisions is not only the product of the Court’s position within the constitutional structure nor judges’ airtight reasoning or personal charisma. Rather, the binding force of precedent is contingent on a web of ideological and communal commitments.

This paper examines one such commitment: the ideology of meritocracy. During the first century and a half of American society, resources and social prestige were more or less allocated according to the logic of aristocracy. But during the mid-twentieth century, a new organizing principle of the American elite began to crystallize. Opportunities once reserved for a hereditary upper class were increasingly promised to talent and hard work— merit. Under this system, aptitude rather than privilege became the gateway to elite education and training. Those educational and professional credentials took on a sorting function, separating society’s premiere leaders from the rest of the American middle class.

Unsurprisingly, this dominant ideology soon migrated to the judiciary. Legal theorists have long turned to the dominant social position of judges as an explanation for the legitimate authority of judicial opinions. Tocqueville, for one, observed that “[t]he special knowledge that jurists acquire while studying the law assures them a separate rank in society. They form a sort of privileged class among intelligent people.” Viewed diachronically, appeals to the social authority of a “privileged class” of judges tell an important story about the evolution of the judiciary and the stories it tells about itself.

As this paper argues, Tocqueville’s description of an elite cadre trained in legal arcana eventually gave way to an implicit theory of a meritocratic judiciary. Today, the countermajoritarian role of the American judiciary is not only undergirded by a structural claim to power or by the rigor of its jurisprudence; it derives legitimacy from judges’ position within a matrix of institutions and achievements that signal meritocratic “success.”

The form of judicial legitimation showcased by the meritocratic spectacle of judicial confirmations may have its origins in social habitus rather than in jurisprudence, but the ideological matrix of meritocracy nevertheless leaves its mark on the law. The paper concludes by excavating the emergence of a meritocratic logic in the United States Supreme Court. Meritocratic jurisprudence bears traces of the social ideology which formed it. This, in turn, perpetuates the very social hierarchy from which judges derive their power, constraining the possibility of a more egalitarian system of resource allocation—and of the disruption of social stratification.

Author

• Bella Marina Ryb, Stanford University