What Does Diversity Look Like on the Supreme Court?

April 17, 2016

Historically, the Supreme Court Justice has not been a diverse group. Only in the past several decades have Presidents even nominated candidates who fell outside the categories of white, Protestant, and male. There have been 112 Supreme Court Justices, 108 of them male, and only 4 female. Only 2 have been African American. The first, Thurgood Marshall, began serving in 1967 and the second Clarence Thomas is currently on the Court. In 1981, 205 years after the creation of the Supreme Court, the country got the first female Justice, Justice Sandra Day O’Connor. In the 35 years since, women’s role on the Court has increased. Now, the Court has three female justices, Justice Ruth Bader Ginsberg, Justice Elena Kagan Justice, and Sonia Sotomayor, who is a Latina as well.

The unexpected death of Justice Antonin Scalia, a staunch conservative, provides President Obama with the ability to nominate someone for the vacancy and some argue that this is an opportunity to further increase the diversity of the Supreme Court.

The Supreme Court is the highest court in the land. Supreme Court decisions set the minimum legal standards for the entire nation. The Supreme Court is the third branch of Government, and has the ability to provide a check and balance for the Legislative and Executive branches if they act outside of the powers provided to them by the Constitution. One would assume that there are rigorous job requirements for such an important position. There are not.

The Constitution does not list any requirements for a person to join America’s highest court. There are no specific qualifications for Justices such as age, education, profession, or native-born citizenship. So, what stops Kanye West, Howard Stern, or Miley Cyrus from becoming the next Supreme Court Justice? Thankfully, the Constitution requires Presidential nomination and Senate confirmation for all Supreme Court Justices, which thus far, has resulted in Justices who had the education and life experience to do the job. Even though it is not required, all Justices were trained in the law. Most Justices attended prestigious universities. Justice Scalia called for an increase in the academic diversity of the Supreme Court, noting in his dissent for the same-sex marriage case that the current Supreme Court bench consists of entirely of “successful lawyers who studied at Harvard or Yale Law School.”

While this was a great opportunity for President Obama to nominate a candidate from an under-represented group, he did not. Perhaps, in order to improve his candidate’s chance of being confirmed by a majority of the Senate, President Obama nominated Judge Merrick Garland, another white male, known for his exceptional legal mind, adherence to legal principles, and tireless and work ethic. A New York Times article quoted President Obama explaining the rationale for his choice. “At a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they’re disposable, this is precisely the time when we should play it straight”.