“Diversity” and the Supreme Court Revisited

I wrote the original version of this post in 2012 on a since-discontinued blog. I updated the post after Justice Antonin Scalia died and President Obama nominated Judge Merrick Garland to replace him. The GOP leadership promised not to allow hearings on the nomination; they did not, and Merrick Garland still sits on the United States Court of Appeals for the District of Columbia Circuit.

Now Justice Ginsburg is gone after a long, exhausting battle with cancer, and President Trump has nominated Judge Amy Coney Barrett to replace her. This time, the GOP has promised to ram the nomination through before the election, and it looks as though they will keep that promise.

Any health-related event to any member of the Court during a Presidential election brings up speculation about the next appointments to the Court. Even without Justice Ginsburg, the present Court is 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 will address the issue of increasing the number of justices in another post after the election. For now, I want to continue to focus on the Court’s composition and its lack of diversity. 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 or humanists or Buddhists or followers of Islam. Two justices — Justice Steven Breyer, and Justice Elena Kagan — are Jewish. All seven of the others (I include Judge Barrett here) — Chief Justice John Roberts, Justice Samuel Alito, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, Justice Sonia Sotomayor, and soon-to-be-confirmed Amy Conan Barrett — are Roman Catholic.

I am not the first to notice this remarkable 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 does not track with the facts. The antecedent reasons for the Court’s lack of religious diversity can be traced to one decision, Roe v. Wade.  Congress obsesses about abortion at every confirmation hearing. Republican presidents feel compelled to appoint “pro-life” justices. This need to appeal to one part of the Republican Party leads Republicans to appoint Catholics to the Court. Not to be outdone, Democratic presidents, in order to make sure they are appointing genuine liberals to the Court, particularly with regard to abortion rights, appoint Jews.

The Court’s lack of diversity doesn’t end with religion. The Court even falls short with regard to geographic diversity;  before Justice Ginsburg’s death, four of the nine justices had grown up in New York City. Imagine that forty-four of the members of the United States Senate hailed from New York. 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, again while Justice Ginsburg sat on the Court, had strong ties to the Northeast corridor — New York, Boston, Washington.

Worse, all nine of the justices — Judge Barrett won’t change this characteristic — have spent virtually their entire lives in academics or 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 — not even as lawyers.

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 (while Justice Ginsburg was on the Court) attended one of two law schools, Harvard and Yale. Although Justice Ginsburg’s law degree was 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. Judge Barrett will break this Ivy League monopoly, as she pointed out during her hearing before the Senate Judiciary Committee. But even after she takes her seat, 8 of the 9 will still share this elite and cloistered background.

Moreover, no justice has any background whatsoever 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 familiarity with the most significant intellectual achievements of the past hundred years. Their 18th-century educations at elitist schools have not prepared the members of the Court for their duties in the 21st century. This lack of intellectual diversity, indeed, this lack of mental scope on the Court, cannot be healthy.

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