President Obama’s Supreme Court nominee, the current U.S. solicitor general and former Harvard Law School dean Elena Kagan, is being touted as a “diversity” choice because she is a woman, while there are currently just two women on the Court in a country in which women make up more than half the population.
Previous choices to the Court have been similarly touted as bringing diversity to that august institution. Sonia Sotomayor, Obama’s previous appointment, was hailed because she is a woman and the first Puerto Rican appointed to the Court. Justice Scalia was the first Italian, Ruth Bader Ginsburg the first Jewish woman, and Clarence Thomas only the second African-American appointed to the Court, filling the vacancy of Thurgood Marshall. Yet the diversity on the Court always seems to stop at considerations of race, gender, and ethnicity.
On other important grounds, the Supreme Court appears as a surprisingly monolithic group of justices. Nearly all attended elite colleges and proceeded from there to a few Ivy League law schools. They come from either a few northeastern states or from California. Considered as a group, the absence of genuine diversity on the Court is more than a little stunning.
Here, then, is the line-up of the current Court, with nominee Kagan penciled in, with their colleges, law schools, religious background, and region of residence listed:
In terms of undergraduate colleges, five of the nine attended Ivy League institutions (Princeton, Harvard, and Cornell), and two attended Stanford University. The two outliers are Scalia and Thomas who (as Catholics) attended Georgetown University and Holy Cross (respectively). There are no public institutions represented in the bunch, even though the overwhelming majority of college students in the United States attends such institutions. Outstanding public systems such as those in the states of Michigan, Wisconsin, Ohio, California, Texas, and Florida are completely unrepresented on the Court. It is as if people who live in the vast region between New York and California do not exist for the purposes of the Supreme Court.
With respect to law schools, the unrepresentative character of the Court is even more pronounced. Eight of the nine justices (including Kagan) attended either Harvard or Yale Law Schools; the ninth—Ginsburg—attended Columbia. Just three Ivy League law schools have supplied the legal education of the entire Supreme Court. What kind of diversity is that? There are fine law schools in every state of the union, many of which are highly rated even by Ivy League standards. These schools train the leaders of their respective states, yet the graduates of such schools are nowhere represented on the Supreme Court. In past generations they sent many distinguished graduates to the Supreme Court, typically appointed by presidents who were sensitive to the importance of regional and political diversity on the highest court in the land.
In terms of regional representation, the current Court (again with Kagan included) is composed of eight members from northeastern states and a single member (Kennedy) from California. Three of the nine members—Ginsburg, Sotomayor, and Kagan—were born and raised in New York City, and two (Scalia and Alito) hail from nearby New Jersey. Thomas grew up in Georgia and Roberts in Indiana, but both attended school in the Northeast and embarked on legal careers there as adults. Aside from these childhood attachments, the vast interior of the country is unrepresented on the Court.
Nor is there much religious diversity on the Court as six members are Roman Catholics and three are Jewish. In this sense, they are more or less representative of the region in which they have made their careers. With the retirement of John Paul Stevens, there are no longer any Protestants on the Court, even though 70 percent of Americans are associated with Protestant churches of various kinds.
It gets even worse. All of course are lawyers. Eight of the nine—excepting Kagan—were elevated to the Court from judicial positions to which they were appointed because of their training, intelligence, and connections. None has held an elected office that would have required an appeal to the common sense of voters. All have lived and worked in the hermetic world of elite colleges, Ivy League law schools, and the federal bench.
This is a particularly striking aspect of the modern Court when one considers that in the past justices frequently ascended to their positions from elected offices. Earl Warren, for example, was previously Attorney General and Governor of California and Republican candidate for Vice-President in 1948. Frank Murphy, appointed by FDR, came to the Court after serving as Mayor of Detroit and Attorney General and Governor of Michigan. Chief Justice Taft served a term as president before being elevated to the Supreme Court. Such backgrounds were common among justices until relatively recently when considerations of legal training and ideology replaced those of regional representation and political experience.
It is little wonder with such insular backgrounds that justices of the Supreme Court should be tempted to lay down the terms of existence for 300 million Americans. This is an exaggeration, of course, since there are distinguished members of the Court who dispute any such pretensions. Nevertheless, the temptation to do so is ever-present and the source of it is not difficult to fathom. The justices of the Court have attended the best schools where they received top grades, have gotten ahead in a competitive profession, and have constantly been told how intelligent they are. They represent a law school culture in which the law is conceived in terms of logical arguments alloyed with good intentions. The everyday world of most Americans is thoroughly foreign to such a culture. And thus it is naïve to think that, given where they came from, the justices would disdain the opportunity to make the law—and even to make it up when they can.
It is wonderfully ironic that this is the world that has been given to us by more than thirty years of diversity mongering on college campuses and law schools. The more diverse or egalitarian we claim to be, the less diverse and representative we become in practice. The same trend that we observe on the Supreme Court is evident as well among our recent presidents and presidential candidates, all of whom seem to arise from common educational backgrounds among elite undergraduate institutions or Ivy League law schools. So it is that our obsession with diversity and difference has at length produced a governing class of monolithic sameness whose members are increasingly out of touch with the citizens for whom they propose to legislate.
James Piereson is president of the William E. Simon Foundation and senior fellow at the Manhattan Institute. He is the author of Camelot and the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism.