Scalia's unusual view of Supreme Court diversity

Looking at a United States Supreme Court that features three women, three Jews, a Latina, and only the second African-American man in its history, you wouldn’t think it has a diversity problem. 

But others would disagree – including Justice Antonin Scalia, who lamented the court's homogeneity with respect to a number of key characteristics, including life experience and work experience, in one of the last dissents he wrote.

And with Justice Scalia dying unexpectedly last weekend, some experts say the lack of diversity he spoke to should be remedied by his replacement. Whether a justice with his desired background – significantly different from his own, it should be noted – can be confirmed in the heated political battle that has erupted is another question, however. 

Scalia’s dissent from the court’s decision in June establishing a constitutional right to same-sex marriage is remembered most often for the colorful language he used to express his views. He bemoaned that the nation's highest court had "descended from the disciplined legal reasoning of John Marshall" to "the mystical aphorisms of the fortune cookie."

But in that same dissent, Scalia also made some interesting observations about a court that many consider one of the most diverse in its history. 

"To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine," Scalia wrote, "is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation."

All of the justices went to Harvard and Yale Law School, he wrote, and eight of them grew up on either the East or West Coast, with four coming from New York City alone.

On even deeper examination, there’s even less diversity in some measures. All but one of the justices are former federal appeals court judges (Elena Kagan had served as dean of Harvard Law School and US solicitor general before her appointment, and she took some heat for it during the confirmation process). None has ever served on a state court or run for public office. The Roberts court is the first in US history without a Protestant. Three are Jewish; six justices, including Scalia, are Catholic.

“Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination,” he wrote in the dissent.

The subtle uniformity Scalia complained of has been taking shape for decades, says Timothy O'Neill, a professor at the John Marshall Law School in Chicago. In previous decades, the court would feature former politicians, former prosecutors, and former law professors. Before Dwight Eisenhower's presidency about a third of nominations to the Supreme Court went to sitting judges, The New York Times reported. Since 1953, more than two-thirds have.

The court that unanimously struck down segregation in public schools with the 1954 Brown v. Board of Education ruling, for example, included Earl Warren, a former governor of California; a former senator (Hugo Black); a former US attorney general (Robert Jackson); and a former chairman of the US Securities and Exchange Commission (William Douglas).

A main driver of this change was the failed nomination of Robert Bork in 1987, Professor O'Neill argued in his 2007 paper "The Stepford Justices: The Need for Experiential Diversity on the Roberts Court."

President Reagan nominated Mr. Bork, then a federal appeals court judge with a long track record of controversial conservative legal decisions (including disagreeing with the Supreme Court on issues like gender equality and the desegregation of businesses). His record spurred Democratic senators and civil rights groups to vigorously oppose, and ultimately defeat, his nomination. The episode created a new verb – to "bork" – defined in the Oxford English Dictionary as "to defame or vilify a person systematically." 

Since then, O'Neill says, presidents have tried to sell nominees as nonideological legal technicians – and that’s easiest to sell when the nominee has served as a judge and studied law at one of the most prestigious law schools in the country.

"Since we know the president is trying to appoint people with ideologies they agree with, they have to put on this front," he adds. "Nobody really believes that, but for some reason they try and sell people as technicians of the law with no ideology."

And the consequences of that could be significant, according to O'Neill. In particular, he notes that Justice Sandra Day O'Connor, who retired in 2006, was the last justice to have any legislative experience. Four years later, the court transformed the political landscape of the country by ruling, in the Citizens United case, that the First Amendment prohibited the government from restricting election spending from corporations and labor unions.

When you read the decision, O'Neill says, "it has an air of unreality about it. It reads like it was written by law professors, not anyone with political experience."

"When they say you have to have greatest legal scholars on court you wonder, if anyone had any experience in politics, if a case like Citizens United would have been decided the way it was," he adds.

Some argue that where a justice went to law school and what jobs they held before their nomination matter little compared to other factors. Mark Hurwitz, a political scientist at Western Michigan University in Kalamazoo, says that the current justices all had highly varied upbringing prior to beginning their legal educations and careers. Sonia Sotomayor grew up in a Bronx housing project, for example, while Clarence Thomas grew up in the segregated South.

"Do you just forget that when you enter your legal training? I don’t think so," he says.

And Orin Kerr, a professor at the George Washington University Law School, adds that the going to the same prestigious law school doesn’t mean the justices think the same way.

"There's a lot of focus on where a person went to law school, that they only went to Harvard or Yale," he says. "I went to Harvard Law School, and there's an incredible diversity of opinion on the law at Harvard."

And as more justices with judicial experience have been appointed, the court's opinions have improved, Professor Kerr adds.

"They're technically much higher quality, much more careful, much more thorough, and much clearer. They're just better opinions than there used to be," he says. 

A more immediate obstacle to diversifying the Supreme Court is the politicized nature of the confirmation process.

"The confirmation battles have become so intense that in order to prove merit-worthiness, the most prestigious law schools and highest ranking judicial jobs seem to be what's needed," says Hurwitz.

"We've kind of pigeonholed who's qualified," he adds. "The consequence is we have the least diverse Supreme Court in terms of professional background ... at the same time as we have the most diverse Supreme Court in history."