Bench Memos

Law & the Courts

Justice Scalia and Diversity on the Supreme Court

In a New York Times column, Adam Liptak presents recent comments by Justices Sotomayor and Kagan on the “striking lack of diversity” on the Supreme Court. Immediately after noting Kagan’s observation that the Court might suffer from what she called a “coastal perspective,” Liptak asserts that Justice Scalia “made a similar point in a dissent last year” in the same-sex marriage case, Obergefell v. Hodges.

The trusting reader might think that Scalia was lamenting the lack of diversity on the Court. Indeed, Liptak himself made that wildly mistaken claim in an article some months ago (“What Would Scalia Want in His Successor? A Dissent Offers Clues”), even contending that Scalia was asserting an “obligation of the president to diversify the Supreme Court.” But as I explained back then, Scalia was instead complaining that the justices in the majority weren’t acting “as judges” but were instead acting as legislators—and was pointing out how “highly unrepresentative” they are in carrying out that misappropriated legislative role. He emphasized that if the justices “were functioning as judges” (his emphasis), their “strikingly unrepresentative character … would be irrelevant.” Here’s the full passage from Scalia’s dissent (underlining added):

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular con­stituency is not (or should not be) relevant. Not surpris­ingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful law­yers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

One lesser comment: Liptak states that five of the current justices “are Roman Catholic.” My understanding—I invite correction if I’m mistaken—is that Justice Sotomayor does not identify as Catholic but instead routinely has that identity thrust upon her. (At the time of her nomination, a White House aide said only that she “was raised as a Catholic and attends church for family celebrations and other important events.” I understand that to mean that she was no longer a practicing Catholic.) 

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