The Court's Other Diversity Problem

Newscom photo illustration More rare than a lesbian or Latino on the bench: a justice who didn’t go to Harvard or Yale. While others speculate on the race and gender of Justice Souter’s replacement, Paul Campos explains that the Supreme Court’s real diversity problem is career path and class. It wasn’t always this way.

Anyone who looks at a 50-year-old photograph of the Supreme Court will probably be struck first by the uniform race and gender of the nine older white men. Given that the court today includes only one woman justice, Ruth Bader Ginsburg, and that she was recently diagnosed with pancreatic cancer, there’s nothing wrong with limiting the search for David Souter’s replacement to women. Whatever one’s views on the value of gender and ethnic diversity, it’s probable that not too many people today remain comfortable with the notion of an all-male Supreme Court.

Supreme Court nominations have become repositories of the sort of superficial status markers that have come to obsess the American upper class.

Still, other forms of diversity shouldn’t be ignored—and in a crucial sense the Supreme Court today is a far less diverse institution than it was a half-century ago.

Consider the makeup of the court at the time Brown v. Board of Education in 1954. Chief Justice Earl Warren had been a three-term governor of California. Hugo Black and Sherman Minton had served in the Senate. Harold Burton was a former mayor of Cleveland. Stanley Reed had been in the Kentucky legislature, and was appointed by FDR to run the Reconstruction Finance Corporation at the height of the Great Depression. William Douglas was chairman of the Securities & Exchange Commission. Tom Clark had been a Texas district attorney.

Even the most academic member of the court, former Harvard Law professor Felix Frankfurter, had been deeply involved in nuts-and-bolts Progressive era and New Deal politics for decades.

The educational backgrounds of the justices were as varied as their careers. They graduated from state law schools all across the country, including Indiana, Alabama, Texas, and California. (Reed never even received a law degree.) Most of them served in the military, and three saw combat during World War I.

Now consider the backgrounds of the current justices. Every single one of them was a federal appellate court judge at the time he or she was nominated to join the court. None has held elective office. Only the retiring Souter has presided over a trial, and only the 89-year-old John Paul Stevens has served in the military.

Their education is even more uniform than their careers. Six attended Harvard Law School, while two others graduated from Yale.

Indeed, even as the institution has slowly begun to open itself to gender and racial diversity, Supreme Court nominations have become repositories of the sort of superficial status markers that have come to obsess the American upper class.

The career path to get on the court has become astonishingly narrow. Go to Harvard or Yale Law School, clerk for a Supreme Court justice, work for one of a handful of elite law firms, become a law professor at a top school or rotate into a fancy government position, then get appointed to a federal appellate court and wait for your name to be called.

Something like the reductio ad absurdum of this process is reflected in the fact that two of the most commonly mentioned potential successors to Souter are Elena Kagan and Harold Koh, until recently deans of the Harvard and Yale Law Schools, respectively. (Kagan was just appointed solicitor general but may end up joining the Supreme Court before she argues before it in that role.)

To be sure, there’s nothing inherently wrong with appointing the deans of the Harvard and Yale Law Schools to the Supreme Court. I suspect Kagan and Koh would make fine justices in their own fashion.

I’ve spent most of the last 20 years on the edges of the little world that cranks out elite law school graduates. For all its charms, it’s a very insular place.

But I’ve spent most of the last 20 years on the edges of the little world that cranks out elite law school graduates, who go on to become Supreme Court clerks, and associates at fancy law firms, and law school professors, and deputy attorneys general, and federal appellate judges. For all its charms, it’s a very insular place.

Limiting Supreme Court nominees to those who inhabit it largely limits the field to members of a social and intellectual elite who generally lack much in the way of either practical political experience, or contact with people outside their rarified socio-economic status. The court is ultimately a deeply political institution, and, as the history of the Warren court illustrates, being immersed in politics for much of their lives may serve justices better than having gotten straight A’s at one of two law schools.

Interestingly, Barack Obama seems to have a strong sense of all this. Indeed, Obama himself is an example of someone who took the road less traveled: After being president of the Harvard Law Review, he didn’t take a judicial clerkship or a job with a fancy law firm.

Instead, he went into politics—first as a community organizer, then in the Illinois state legislature. He wrote nonacademic books. He turned down a tenured position at the University of Chicago Law School.

In short, he didn’t play the game by its current rules. (If he had, he would probably now be a judge on the Seventh Circuit Court of Appeals, and his name would get floated as a possible Supreme Court nominee.)

And some of his comments reflect his uneasiness with those rules. For example, on the presidential campaign trail he said, “[S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.”

Obama, at least, seems to understand the importance of maintaining a diverse definition of diversity. Let’s hope he remembers it when he chooses Souter’s replacement.

Paul Campos is a professor of law at the University of Colorado at Boulder.