Bench Memos

Law & the Courts

Gross Misreading of Scalia on Court Diversity

In an article in yesterday’s New York Times titled “What Would Scalia Want in His Successor? A Dissent Offers Clues,” the usually insightful Adam Liptak whiffs badly. Liptak misreads Scalia’s dissent in Obergefell v. Hodges as “criticizing the lack of diversity of the court he sat on,” as asserting an “obligation of the president to diversify the Supreme Court,” and as offering “detailed suggestions” for nominations. But here’s the full passage (emphasis added) from which Liptak misclips various quotes:

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.

In short, Scalia is complaining that the justices in the majority aren’t acting “as judges” but are instead acting as legislators—and is pointing out how “highly unrepresentative” they are in carrying out that misappropriated legislative role.

Liptak, I’ll note, buries the passages I highlight at the end of his article. But even there he miscasts Scalia as supposedly merely “wish[ing] various kinds of diversity did not matter in judicial appointments” and as making a “plea to broaden the court’s profile.” Had he understood those passages, he would have scrapped his article.

Argle-bargle, indeed.

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