Good morning all! Stephen was delayed with his article, so here it is today. Happy Tuesday!!
Just about an hour ago a thought occurred to me, that the leftists in this country decry and denounce the lack of diversity on a continuous basis, further they whine and cry about the Electoral College and the US Senate not being proportionately representative of the population of the people.
Of course, we are not a democracy and that was never the actual purpose of the Senate, and the Electoral College merely reflects the combined representation of the House and the Senate, so it is partially representative of both the people and the states.
However, while leftists in California whine that Montana gets as much representation in the Senate as they, and they whine that the Electoral College vicariously over-represents the people of the hinterland like Montana when electing a President, they don’t seem to complain that Montana has no representative at all on the Supreme Court, but they do.
Oddly enough, neither do they complain that people in New York have three times as much representation on the Supreme Court as do the people of California. I’m guessing because New York is leftist like them, were those three from Montana they would be complaining about that as well.
Regressives, or “progressives” as they like to call themselves, are always harping about diversity, but the only kinds of diversity they ever care about are race, gender, and ethnicity . . . and perversity when it suits their agenda and can be used as a political cudgel.
They have made a great hoopla regarding increasing the “diversity” of the Supreme Court, such as having a black justice in Thurgood Marshall (though they were unsurprisingly less enamored with then following black justice simply because he was conservative); having now three women on the court (though they were unsurprisingly less enamored with the first female justice simply because she was conservative); and giddy that one of those women is of Spanish European descent, (though they were unsurprisingly less enamored with the previous male Hispanic justice simply because he was conservative).
However, for anyone who actually knows anything about the federal government, the Supreme Court is distressingly and surprisingly not diverse in the least in any way which actually matters. Part of that is the idiotic way that candidates are now so heavily “pre-screened” with ABA approval, selection committees, and Senate confirmation committees before they can even be considered for the job.
Surprisingly in a nation which remains about half Protestant, there is only one Protestant on the Supreme Court, that being Neil Gorsuch, and he was actually raised Roman Catholic. Of the remaining Justices currently five are Roman Catholic, while three are Jewish.
From a standpoint of proportional representation one would expect four or five of the justices to have been raised as a Protestant, but not a single one was. Roman Catholics making up just over 20% of the population, you would expect a couple, but not expect them to have the majority of the seats. Jews being less than 2% of the population, one might expect an occasional Jewish Justice from time to time, but not 33% of the Court. https://news.gallup.com/poll/151760/christianity-remains-dominant-religion-united-states.aspx
(It should be noted here that Gorsuch is Episcopalian, which is the American version of the Anglican Church, who only make up less than 2% of the American population. So essentially the entire court is drawn from religions which make up less than a quarter of the population.)
Why might religious diversity or even proportionality be a consideration? Because it is undeniable that a person’s upbringing influences their perception of the world, and certainly colours their perspective on the law. Our Constitutional principles themselves are founded upon a Protestant view of the relationship between God, the State, and the People.
As Newt Gingrich has pointed out, the Declaration of Independence explicitly states that the individual is “endowed by their creator with certain inalienable rights”, that is that power comes from God to the People, and the People grant power to the State. This was a radical departure from European tradition of the “divine right of kings” where God gave power to the State, as proven by the power of the State, and if the State so deigned, it could give liberty to its People.
Further detail on this esoteric point is not relevant to the present discussion, rather let’s look at some other ways that the court is not “diverse”.
As we are discussing a judicial makeup, the philosophy a person develops as they mature, while certainly influence by their religious perspectives, is also shaped significantly by their educational environment.
Hurray for Colombia, the only law school to manage to actually squeeze in a graduate into the exclusive Harvard-Yale lock on the Supreme Court. Four of our current Justices graduated from Harvard, one was even a Harvard professor, and four graduated from Yale.
“There are 205 ABA-approved law schools and about 32 Non-ABA approved law schools. That means there are 237 law schools in the United States.” https://magoosh.com/lsat/2016/many-law-schools-united-states/ “The Council has accredited and approved 203 institutions and programs that confer the first degree in law (the J.D. degree); three of these law schools are provisionally approved.” https://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools/
Which means that with 237 law schools in the United States, Supreme Court Justices are essentially chosen from only two. (Okay, a few of those are quite new and haven’t been around long enough to have graduates with a sufficient background to be eligible, but that still leaves over 175 law schools.)
Law schools impart a legal philosophy along with the legal education, the way that issues are presented, the arguments which are rewarded and encouraged, the discussions with professors and classmates outside of the classes, are promoting a certain perspective on the purpose and meaning of the law itself.
We talk about big city leftist living in their urban bubbles and never getting outside of New York City, Los Angeles, San Francisco, Philadelphia, Seattle, and Washington D.C., so how much narrower of a bubble is it to only come from two law schools? How much intellectual diversity of though is really there between the “conservative” Harvard Law grad and the “liberal” Harvard Law grad?
When we look at the undergraduate universities, it doesn’t get much more diverse, with all but two of the Justices going to Ivy League schools (though Princeton is well represented there with three of those seven), with Breyer going to Stanford and Thomas going to Holy Cross. They were mostly in their bubbles before law school.
It gets even worse when you realize that law schools tend to draw heavily on certain less rigorous undergraduate majors like English, Political Science, and Liberal Arts rather than Mathematicians, Economists, and Philosophers.
Geographically speaking, as I stated earlier, 1/3 or three of the Justices are from the state of New York, one from Washington, D.C., one from New Jersey, California, Maryland, and Georgia.
Attentive readers will notice that 2/3 or six of the Justices were essentially born in the New York to D.C. Beltway, with another from leftist California. It would be foolish to imagine that growing up in some of the most ideologically leftist places in America would not exert some influence upon the judicial temperament or cultural influences of the justices.
Picture this, not a single justice from the mid-west, or the south-west; only one justice from the south, one from the mountain states, one from the west coast, but all the rest from mid-Atlantic region.
The concentration of the judiciary in the beltway is not just in school, but in the work history of those who eventually become justices after they leave school, either teaching in these same universities, clerking for previous justices, or as lower judges on the appellate courts. https://www.outsidethebeltway.com/supreme_court_diversity/
Where once a former President, Taft, became a Supreme Court Justice, it is difficult to imagine someone from an actually intellectually diverse background ever having a shot at a nomination much less a confirmation as a Justice.
The argument goes something along the lines that these “elite” schools are only taking the best of the best students, so it is only natural that the Supreme Court Justices should come from them. But, this is false. Many of the best legal minds might not be able to afford Harvard tuition. Many of the best minds are not even the ones who make the best grades in undergraduate or even in law school. Most of the best legal minds develop far more profound insights through experiences after law school often even from outside the field of law.
Choosing exclusively from those admitted to the prestigious law schools, and from the highest scoring from among those . . . is like running a chess championship by only looking at the participants’ rankings when they were 25 years old and not actually playing any games. It would be foolish for chess, it is ever more foolish for our Supreme Court.
So if actual intellectual diversity is important, and I believe it is crucial to prevent the tunnel vision of an elitist legal bubble, then we need to look at how we can expand and open our prospects for Supreme Court Justices. A little historical perspective is in order.
“For most of the existence of the Court, geographic diversity was a key concern of presidents in choosing justices to appoint. This was prompted in part by the early practice of Supreme Court justices also ‘riding circuit’—individually hearing cases in different regions of the country. In 1789, the United States was divided into judicial circuits, and from that time until 1891, Supreme Court justices also acted as judges within those individual circuits. George Washington was careful to make appointments ‘with no two justices serving at the same time hailing from the same state’. Abraham Lincoln broke with this tradition during the Civil War, and ‘by the late 1880s presidents disregarded it with increasing frequency’.” https://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States
The Founding Fathers would never have conceived that only one or two schools would be so arrogant, or the people so foolish as to accept, that judges and justices would ever come from such a tiny, narrow range of American society.
Washington was right, no two justices should come from the same state; ergo Lincoln was wrong.
Consider this, the US has eleven Federal Appellate Circuits, and they are generally somewhat divided by population, what if every Supreme Court Justice was required to come from region covered by a different Appellate Circuit? (Grand-fathering in the current Justices so that it would not affect the current court, just affect future courts.)
Every geographic region would tend to have some judicial representation, and inevitably different law schools and their philosophies would have influence upon and with the court.
Of course, this would require President Trump to appoint two more Justices just to bring the number up to eleven, so this would never even be considered a possibility. It could be possible, however, to reduce the number of Federal Appellate Circuits to nine, as that is set by law and not Constitutional mandate.
(I know, they are already talking about breaking up the Ninth Circuit because of a fairly heavy workload, and consolidating Circuits would actually increase the workload.)
I’m interested in the ideas of the readers and commenters of other ways to increase the intellectual diversity of the Supreme Court. What kinds of diversity are really important, religious, geographical, ideological, or practical real world work? If there were no pre-conceived limitations, what criteria would you use to choose? Elitism, group-think, and pseudo-intellectualism in legal thinking has created a muddled, confused mess.
