This post was originally written in 2012 on a since-discontinued blog. But now that Justice Scalia is gone, President Obama has nominated Judge Merrick Garland to replace him, and the GOP leadership has promised not to allow hearings on the nomination, these observations seem even more current than they were almost four years ago.
Reuters reported yesterday [in August 2012], in an exclusive interview with United States Supreme Court Justice Ruth Bader Ginsburg, that Justice Ginsburg fell and broke two ribs just before the exhausting final month of the Court’s 2012 term. https://www.reuters.com/article/2012/08/09/us-usa-court-ginsburg-idUSBRE87801920120809
Justice Ginsburg told Reuters that the injury did not keep her from her work and that she expects to serve three more years. At seventy-eight, she is now the eldest sitting Supreme Court justice. Treated for colon cancer in 1999, she appears to be healthy, and there is no reason to expect she won’t continue her work on the bench on her own terms.
Nevertheless, any health-related event to any member of the Court during a Presidential election brings up speculation about the next appointments to the Court. The Court is presently on average one of the oldest courts of the last sixty years. The next President with the opportunity to appoint one or more persons to the Court must begin to reverse several significant imbalances.
I refer to the Court’s startling lack of religious, geographic, experiential, and intellectual diversity.
The Court is the one branch of the government of the United States which now includes no Protestant Christians. Three justices — Justice Ginsburg, Justice Steven Breyer, and Justice Elena Kagan — are Jewish. All six of the others — Chief Justice John Roberts, Justice Samuel Alito, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, and Justice Sonia Sotomayor — are Roman Catholic.
I am hardly the first to notice this somewhat startling fact. Law school professor Jeffrey Rosen observed that “it’s a fascinating truth that we’ve allowed religion to drop out of consideration on the Supreme Court, and right now, we have a Supreme Court that religiously at least, by no means looks like America.” Although Nina Tottenberg of NPR has argued that the present religious makeup of the Court is not a “left-right” issue, https://abovethelaw.com/2010/04/is-the-kagan-nomination-a-done-deal/, that argument seems patently incorrect. The antecedent reasons for the Court’s lack of religious diversity can be traced to one decision, Roe v. Wade, that seems to entrance Congress at every confirmation hearing, and include Republican presidents’ desire to appoint “pro-life” justices, a desire ineluctably leading them to appoint Catholic jurists, and Democrat presidents’ equal efforts to make sure they are appointing genuine liberals to the Court, particularly with regard to abortion rights, leading Democrat Presidents to appoint Jews. 1
But the high Court’s lack of diversity doesn’t end with religion. Oddly, the Court even falls short with regard to geographic diversity, with four of the nine justices hailing from New York City, a stunning fact. Imagine, just as a thought experiment, that forty-four of the members of the United States Senate made their homes in one of the five boroughs. That failure of diversity would be unacceptable to everyone in the United States living east of the East River and west of the Hudson. In addition, six of the nine have strong ties to the Northeast corrider — New York, Boston, Washington.
What is more, all nine of the justices have spent virtually their entire lives in government. Timothy P. O’Neill has thoroughly explored this issue in his article published in the Oklahoma Law Review, “The Stepford Justices”: The Need for Experiential Diversity on the Roberts Court.” Click here for article
The sitting justices have little experience in government outside the courts and virtually no experience in the private sector.
Although the lack of religious, geographic, and experiential diversity on the present Supreme Court significantly impacts the extra-legal experience the justices are able to apply to the decisions they review, the most profound lack of diversity on the Court today may be in the justices’ legal and undergraduate education. All nine justices attended one of two law schools, Harvard and Yale. Although Justice Ginsburg’s law degree is from Columbia, she transferred there after starting at Harvard. Justice Kagan is a former dean of the Harvard Law School. To a significant degree, their legal views were shaped by homogenous student bodies and by the same law professors, the same traditions, the same ambience. Moreover, no justice has any background in science or technology or engineering. Their undergraduate majors were political science, history, English, government, philosophy, and public and international affairs. To be harsh, no sitting justice can claim any direct understanding of the most significant intellectual achievements of the past hundred years. An eighteenth-century education has not prepared the Court for its duties in the twenty-first century. This lack of intellectual diversity, indeed, lack of mental scope on the Court, cannot be healthy.
Nor is the global lack of diversity healthy for the Court or for the nation. Surely the next President exercising the power of appointment to the Court would do well to appoint a Protestant graduate of a top-twenty-five law school somewhere between the coasts, preferably one of the many lawyers and judges who pursued another career, in business or medicine or technology or engineering, before deciding on law school. American jurisprudence and the Court would be healthier for it.
Notes:
As an aside, some commentators have tried to argue that the reason Protestants aren’t represented on the Court is that, somehow, Protestants don’t send their children to law school. Nonsense. The United States remains fifty per cent Protestant. Over sixty per cent of United States senators self-report as Protestant, and sixty per cent of present members of the Senate are lawyers. ↩