The Corner

Law & the Courts

‘Studies Show’ Nothing about SCOTUS Diversity

Chief Justice John Roberts (seated, center) leads Justice Ruth Bader Ginsburg (front row, left to right), Justice Anthony Kennedy, Justice Clarence Thomas, Justice Stephen Breyer, Justice Elena Kagan (back row, left to right), Justice Samuel Alito, Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch in taking a new family photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

A recent headline in the Washington Post “Speaking of Science” section reads: “Every current Supreme Court justice attended Harvard or Yale. That’s a problem, say decision-making experts.” The author cites numerous studies that show that “groups with vastly diverse members are smarter, more creative, make fewer errors and show increased problem-solving abilities.”

The argument goes in every direction and gets nowhere. We are informed that a certain McKinsey study found that public companies with high ethnic and racial diversity among their managers were more likely to garner above-average returns. A few lines earlier we were reminded that “the current justices are far more diverse in gender and race than past decades.”

Then we notice that the studies in question deal with financial markets, biotechnology, IT consulting, sports teams, and trial juries, all of which have less than nothing to do with the Supreme Court. The assertion “diverse groups make better decisions” requires us to understand what “better” means.

As regards the Supreme Court, it means ruling correctly on questions of constitutional law. There is an important difference between this and the previous examples that is entirely lost in the Post’s analysis, namely that the Supreme Court does not reason scientifically.

In all the fields examined by these studies, a good decision is one ratified by good empirical results. The actors are approaching a problem with many variables, weighing their impacts, and devising the solution that best accounts for them. This process demands the most ingenious thinking possible, so assembling a group of people who all think differently is the best way to ensure that all possible hypotheses are considered. Once they choose a hypothesis, they put it into practice and see whether it works. If it doesn’t, they ditch it and try something else. Having the diversity of viewpoint is a way of reaching the best hypothesis the fastest.

That is roughly the scientific method. The Supreme Court, however, does nothing like this, or at least it shouldn’t. It is not trying to devise a solution to a practical problem with many variables. Its task is to determine whether a law or action is permitted by the Constitution. This is a deductive procedure that works by principles.

Whether a law is constitutional is not affected by its social effects or its expediency or its political desirability. A Supreme Court decision is not a hypothesis about how best to run the United States. The criterion for selecting justices, therefore, is legal perspicacity, not innovative genius.

What benefit accrues to the country from a Supreme Court justice who, to borrow the Post’s example, has practiced law in Montana? A justice is not making the law; he’s applying the federal Constitution, which is uniform everywhere, to specific cases, the facts of which he will study individually. The sole advantage of having a Montana lawyer on the Court would be an intimate knowledge of Montana law, which would be useful only in cases pertaining to Montana and could be acquired with a little effort by anybody else.

The late, great Justice Scalia explained this in his dissent in Obergefell v. Hodges. “The strikingly unrepresentative character of the body voting on today’s social upheaval,” he wrote, “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.” He was condemning the Court’s activism in that case, but he also showed that people who demand diversity in the justices misunderstand the Court’s function.

SCOTUS isn’t Bridgewater. We don’t need “innovative solutions” to conflicts. We need to adhere to the Constitution, and if the best candidate is another Yalie, let’s get him on the bench.

Liam Warner — Liam Warner is an editorial intern at National Review.

Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More
Politics & Policy

The Strange Paradoxes of Our Age

Modern prophets often say one thing and do another. Worse, they often advocate in the abstract as a way of justifying their doing the opposite in the concrete. The result is that contemporary culture abounds with the inexplicable — mostly because modern progressivism makes all sorts of race, class, and ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More
U.S.

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More
World

Ilhan Omar’s Big Lie

In a viral exchange at a congressional hearing last week, the new congresswoman from Minnesota, Ilhan Omar, who is quickly establishing herself as the most reprehensible member of the House Democratic freshman class despite stiff competition, launched into Elliott Abrams. She accused the former Reagan official ... Read More
Elections

One Last Grift for Bernie Sanders

Bernie Sanders, the antique Brooklyn socialist who represents Vermont in the Senate, is not quite ready to retire to his lakeside dacha and so once again is running for the presidential nomination of a party to which he does not belong with an agenda about which he cannot be quite entirely ... Read More
PC Culture

Merciless Sympathy

Jussie Smollett’s phony hate-crime story could have been taken apart in 24 hours, except for one thing: Nobody wanted to be the first to call bullsh**. Who will bell the cat? Not the police, and I don’t blame them. Smollett is a vocal critic of President Donald Trump who checks two protected-category ... Read More