Restoring ‘Diversity’ To The Supreme Court

Published July 3, 2016

Liberals talk a great deal about “diversity” these days, so it is ironic that so many have lined up in favor of President Barack Obama’s pick for the Supreme Court, Merrick Garland. On important measures, Garland would render the Court less diverse than it is now.

One measure of diversity among justices is where they received their legal education. The Supreme Court hears cases nationwide. Because an attorney’s law school training affects his or her outlook as a lawyer and as a judge, it makes sense for the justices to come from a range of different law schools, but they do not.

When Justice Antonin Scalia was alive, eight of the nine justices had attended only two of the nation’s more than 200 law schools. Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor all earned their degrees from Yale. Justices John Roberts, Scalia, Anthony Kennedy, Stephen Breyer, and Elena Kagan all attended Harvard (as did Merrick Garland). Moreover, Justice Stephen Breyer had served as a Harvard law professor and Kagan as Harvard Law School dean. The remaining justice, Ruth Bader Ginsburg, received her degree from New York’s Columbia University. But she spent part of her law school years at Harvard as well.

In other words, all nine justices received their legal education in three Ivy League schools along a thin strip of the Atlantic coast. This is not merely a technical detail; it matters. Those schools share an elite legal culture. Even when their graduates differ politically or legally, they often operate from common premises about the law.

Justices may also imbibe different legal outlooks from where they were born or reared. Roberts, Ginsburg, Sotomayor, and Kagan all hail from New York State — three of those four from New York City. Scalia and Alito were raised in New York’s neighboring state of New Jersey (both in Trenton). Breyer and Kennedy came from California, and Thomas from Georgia. None came from “fly-over country.”

Like law school, place of origin matters. Here is one illustration: During my 25-year career as a law professor, I taught several courses involving the Uniform Commercial Code — the UCC. The UCC is a statute adopted by all 50 states. Its wording is the same everywhere, with only occasional deviations. Yet, I found that courts of different states could interpret the same language in a variety of ways. Sometimes, this was the result of accident, but in many instances it was a function of local culture. Thus, a New York court might interpret a section of banking law to protect larger banks and preserve business stability and the New York commercial heritage. A court in California or Montana might interpret the same language in a way favoring bank customers. An Alabama tribunal might construe the language in a manner that protects smaller, rural banks.

When justices come from a single section of the country, they are more likely to overlook or, even worse, unfairly devalue legal rules rooted in different local cultures.

Particularly serious is the lack of justices from any of the 11 thinly populated states in which the federal government owns 25 percent or more of the land: Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. Federal policy has a disproportionate impact in those states. When former Justices Sandra Day O’Connor and William Rehnquist, both from Arizona, were on the Court, they brought to their jobs a Western brand of common sense jurisprudence absent today.

Religious outlook is another relevant influence. When Scalia was alive, six justices were Catholic and three were Jewish. Approval of Judge Garland would make it 5-4. Since I’m Jewish, I might be expected to approve of the Jewish over-representation, but it bothers me that in a country with a Protestant plurality not a single justice is Protestant. It bothers me even more that there has not been a Mormon, Evangelical, or “born again” Christian justice for decades.

I do not believe in quotas, but sometimes a bit of affirmative action is a good idea. When considering candidates to fill the Scalia vacancy, the next president should assure that his pool includes Westerners, Evangelicals, and other under-represented groups

[Originally published at the Daily Caller]