Alexis de Tocqueville, in commenting on American political and governmental institutions in the 1830s, observed with regard to the United States Supreme Court that "a mightier judicial authority has never been constituted in any land." And then, after listing some powers of the Court, he made this profound point concerning it: "One might even say that its prerogatives are entirely political, although its constitution is purely judicial."
Gradually, and without much reflection, we have come to accept the idea that all judges should be selected from the legal profession. A case can be made for appointing lawyers to preside over lower courts, where most cases are settled within the limits of the law as written or as interpreted by the courts. It might even be argued that creative imagination or a disposition to make legal judgments within the broader context of history and philosophy is not desirable in the lower courts.
A similar case cannot be made for the appointment of lawyers to the Supreme Court.
Cases involving simple points of law are ordinarily not taken to the Supreme Court. If a case involving a point of law is accepted, it usually requires a decision that is beyond the law as defined. Most of the Supreme Court's important decisions do not deal with technical legal distinctions or definitions. In performing their most important function, Supreme Court judges do not "think or speak as lawyers." The judgments they are called upon to make are much broader and deeper; they are beyond the "limits" of the law.
Students of constitutional history and of the Supreme Court usually identify three periods in American constitutional development: the first, from 1789 to the end of the Civil War, in which the Court's