This Harvard Law prof thinks constitutional theory is a terrible way to pick a judge

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This Harvard Law prof thinks constitutional theory is a terrible way to pick a judge

By Lee Rawles

March 5, 2025, 9:04 am CST

What if we are asking the wrong questions when selecting American judges? Mark Tushnet thinks our current criteria might be off.

“We should look for judges who are likely to display good judgment in their rulings, … and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory,” the Harvard Law School professor writes in his new book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory.

In looking at what qualities were shared by great U.S. Supreme Court justices, Tushnet identified five that he thinks were of especial importance:

1. Longevity and age

2. Location in political time

3. Prior experience in public life

4. NOT A JUDGE (“I put this in capital letters because it’s common today to think that justices have to have been judges,” Tushnet writes. He doesn’t see having a past judicial career as disqualifying but points out that many great justices were not sitting judges when appointed.)

5. Intellectual curiosity

In this episode of The Modern Law Library podcast, Tushnet and the ABA Journal’s Lee Rawles discuss how he thinks that people should be evaluated for judicial positions, his experience as a clerk for the late Supreme Court Justice Thurgood Marshall, what makes a well-crafted opinion, and why he thinks that any overarching theory about the Constitution will fall short.

In This Podcast:

Mark Tushnet

Mark Tushnet is a William Nelson Cromwell law professor emeritus at Harvard Law School. Tushnet, who graduated from Harvard College and Yale Law School and was a law clerk to the late U.S. Supreme Court Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world. He is the author of more than a dozen books, has edited eight others, and has written numerous articles on constitutional law and legal history.