USA Justice

Supreme Court picks: What does Trump's shortlist say about diversity?

Members of the US high court have criticized their own lack of geographic and professional diversity. Sometimes, this background matters on the Supreme Court. Other times, it doesn't. 

The Supreme Court building is seen in Washington. The three names on the shortlist for Trump's Supreme Court nomination buck the geographic and academic pedigrees of the Roberts court.
Pablo Martinez Monsivais/AP
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All eight justices on the Supreme Court attended either Harvard or Yale Law School. All were either born or spent much of their lives in the northeast or California. And none are evangelical Christians or Protestants, which comprise nearly half of the American public.

President Trump’s nomination to fill the vacancy on the court left by Justice Antonin Scalia’s death could change that. Of the three men reportedly on the president’s shortlist, all are from “flyover country,” one is known for his facile and colloquial writing style, and one is a graduate not of Harvard, Yale, or Columbia, but Tulane Law School in Louisiana.

To be fair, the racial and gender makeup of the Roberts court is the most diverse in US history. For the first time, the court has three women, one of whom is Hispanic. It also has its second African-American justice ever.

But ever since the Dwight Eisenhower presidency, at least two-thirds of justices have hailed from the same cities and come from the same professional backgrounds: federal appeals court judges from cities like Boston, New York, Philadelphia, and Washington.

Several members of the Roberts court (including the late Mr. Scalia) have engaged in self-reflection on the effect of their lack of geographic and professional diversity. But the academic jury is out on its impact on decisions by either Supreme Court or lower federal and state jurisdictions. 

Mr. Trump is expected to announce his nomination for the ninth justice on Thursday.

Of the 21 possible choices he proposed during the campaign, three white men, all ardent conservatives, are reportedly near the top: Neil Gorsuch, Thomas Hardiman, and William Pryor.

Mr. Gorsuch serves on the 10th US Circuit Court of Appeals in Denver. While he is a graduate of Columbia University and Harvard Law School, the Coloradan is an avid skier, fly fisherman, and horseback rider. More important to the court, his clear and colloquial writing style is representative of his belief in simplifying the justice system to make it more accessible, Rebecca Love Kourlis, a former Colorado Supreme Court Justice, told the Associated Press.

Mr. Hardiman works in Pittsburgh as a judge on the Philadelphia-based 3rd US Circuit Court of Appeals. The graduate of Georgetown Law drove a taxi to support himself during his undergraduate years at the University of Notre Dame. When he moderated a conservative Federal Society panel in Washington in November about labor and employment law, he quipped he might have to channel his taxi experiences to address the subject, according to CNN.

Mr. Pryor works in Birmingham, Alabama as a judge on the Atlanta-based 11th US Circuit Court of Appeals, Known as a staunch conservative, Pryor attributes his political beliefs to his Catholic upbringing. Pryor – who once called the Roe v. Wade decision legalizing abortion the “worst abomination in the history of constitutional law” – said the 1973 case influenced his decision to become a Republican and a lawyer.

These three names, as well as the other 19 on Trump’s list, stand in contrast to Mr. Scalia’s criticism of the Roberts court he aired in his dissent to its ruling supporting same-sex marriage in 2015. 

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

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

“Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count),” he added. 

Other sitting justices have criticized the lack of certain kinds of diversity on the court. In a 2014 talk they gave to their alma mater, Yale Law School, Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas  agreed the court could use more diversity, mentioning geography, religion, professional background and education, according to The New York Times. During a talk at Brooklyn Law School in April, Ms. Sotomayor expanded on this lack of diversity.

“I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school," several justices from New York City and no one who practiced criminal defense law outside white-collar settings, she told the law school audience.

But this monotony hasn’t always been the case. Before Dwight Eisenhower’s presidency, only about a third of Supreme Court nominations went to sitting judges, according to the New York Times. In 1954, the landmark decision in Brown v. Board of education, which struck down segregation in public schools, for instance, was written by Earl Warren, a former governor of California. Among the justices part of the unanimous decision were Hugo Black, a former US senator from Alabama, William Douglas, who had served as the chairman of the Securities and Exchange Commission, and Robert Jackson, the former US attorney general and a graduate of Albany Law School.

Much like the effect the race of jurors has on their decisions, most research suggests that both the political alignment of Supreme Court justices and appellate court judges and their race are important determinants in their decisions.

In June, for instance, Sotomayor, who is Hispanic, gave an impassioned dissent in the case of Streiff v. Utah, invoking James Baldwin's "The Fire Next Time," W.E.B. Du Bois's "The Souls of Black Folks," and Ta-Nehisi Coate's "Between the World and Me” in her criticism of the search-and-seizure it allows.

Justin Driver, a law professor at the University of Chicago, told The New York Times Sotomayor’s dissent was “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court – at least with one justice.”

But Mr. Thomas, the court’s only African-American justice, has voted to get rid of the use of race in admissions and other areas, according to The New York Times, despite having benefited from affirmative action programs himself.

Diversity is an issue in other high courts as well. A 2014 Congressional Research Service Report found almost 75 percent of federal district court judges who were active that year were white. Former President Obama has been praised for improving the gender and racial diversity of the courts through his administration’s nominations.

Other research has also called into question how much diversity really matters, especially in state courts. In a Cornell study of the Texas court system, researchers found the demographic and political backgrounds of judges had little effect on their criminal sentencing decisions.

Conversely, a study out of the Harvard Kennedy School found the decisions of black judges were more likely to be overturned than the decision of white judges. But the researchers couldn’t determine whether the general liberalness of black judges was the cause of their higher reversal rates.