Supreme Court's bench has never been less diverse
Race and gender are important, but with six Harvard justices, President Obama should consider geographic, professional, and social backgrounds, too, when he evaluates nominees.
It may not be long before President Obama is confronted with the delicate task of choosing a new justice for the Supreme Court. Indeed, given the ages of the current justices, he may have the opportunity to appoint more than one.Skip to next paragraph
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If and when he does, interest groups will seek to put pressure on him in support of particular candidates. In considering them, the president would do well to note the uniformity that now prevails. Daniel Meador, one of America's most distinguished law professors and a Supreme Court advocate, has written that the court today "is the least diverse court since 1789." He feels that its work has suffered as a result.
It is widely recognized that most major economic, financial, moral, and social questions that affect the country are ultimately decided by the court's nine justices.
In the past 50 years, they have arguably decided the fates of three presidents. The 1971 decision in New York Times v. the United States indirectly led to the resignation of President Nixon; their decision in Bush v. Gore resulted in the election of President Bush in 2000, and their decision in 1954 in Brown v. Board of Education declaring the "separate but equal doctrine" unconstitutional, paved the way for Mr. Obama to become president 55 years later.
In the 19th century, the court's decision in the Dred Scott case led directly to the Civil War.
Many factors contribute to the power of the court, but three are especially crucial. First, the court holds the power to rule that an act of Congress or of the president is unconstitutional. Second, any person who has been adversely affected by a law or an executive act can challenge it as unconstitutional. Third, the Constitution itself contains elastic terms, such as due process of law which allow it to evolve.
Yet, despite the power of the nine unelected justices to make ultimate decisions on vital public issues, it is a curious fact that few members of the public or the press, or even of the legal profession, can name more than one or two, if any, of them. They are appointed by the president and must be confirmed by the Senate. If confirmed, they have life tenure. Because they wield such vast power and are virtually unaccountable, it is vital that they possess not only intellectual and legal qualifications, but also that they reflect the nation's diversity.
Today, seven of the current judges come from the Eastern Seaboard. Six are graduates of Harvard Law School. As for professional background, all nine were on appeals courts before being appointed to the Supreme Court. Despite the fact that women make up half the population and almost half of the legal profession, only one of the nine judges is a woman.