Thursday, August 19, 2021
For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.
Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.
Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court.
The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.
Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.
And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.
Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?
Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).
There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.
Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.
Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.
Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.
In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.
Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.