What does it mean to have a Supreme Court that ‘looks like America’?

Contemplating my dissertation topic in the mid-1980s, the concept of seats on the nation’s highest tribunal reserved for religious minorities caught my eye after reading a book on Jewish justices. No such study existed on Roman Catholic Supreme Court membership, so I proposed to undertake original research on the subject. One of my professors nixed the idea because only seven Catholic justices had served. He died before seeing the number grow over the past three decades to 15, six of whom (Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito and Sonia Sotomayor) served together from 2009 to 2016. I broadened my study to include seats filled based on religion, race and gender and later wrote a book on the subject.

President Biden’s vow to fulfill his 2020 campaign pledge to place the first Black female justice on the court undoubtedly will spark criticism from opponents who declare that merit should be the only criterion for choosing members of America’s most powerful judicial body. Yet such arguments, while correct that intellect, education and experience should be paramount, overlook the long history of other factors in naming justices. Obviously, ideological kinship between nominees and their appointing presidents has always been a key consideration, but representative characteristics have shaped nominating decisions since the republic’s earliest days.

Should justices represent constituencies? Isn’t that the role of elected officials in Congress and the Oval Office? In theory, isn’t the Supreme Court supposed to remain neutral, analogous to a baseball umpire calling balls and strikes as objectively as humanly possible, according to Chief Justice Roberts? Representation in electoral politics means actively pursuing the interests of constituents, who demand that officeholders implement voters’ policy preferences.

Another connotation of representativeness, however, is more passive, indicating that a justice mirrors characteristics of a subgroup of Americans. Political theorist Hanna Pitkin calls this concept “descriptive representation,” which concerns who representatives are or what they are like, rather than what they do in office.

In this sense, the earliest representative characteristic considered by presidents from George Washington to Ulysses S. Grant was the nominee’s geographic roots. In addition to balancing the court’s composition by naming members from different states or regions — especially important prior to the Civil War — presidents hoped to reward voters from supportive areas of the country. A practical consideration for geographic diversity included justices’ membership on U.S. circuit courts, until 1891, when Congress created separate judgeships for those intermediate appellate tribunals.

As state/regional origin waned in presidential consideration, religious affiliation rose to the top of representative characteristics, not coincidentally when Catholic and Jewish immigrants inundated the United States from the mid-19th century until well into the 20th century. Presidents wanted to shape the court as a reflection of the arrivals, while also encouraging those minority religious groups to vote for them and rewarding supporters when they did. Thus developed a “Catholic seat” and then a “Jewish seat” on the bench. When a Catholic or Jewish justice would vacate the position, presidents would search for a nominee from that religious faith. A streak of appointees (Edward White, Joseph McKenna, Pierce Butler, Frank Murphy and William Brennan), nominated because of their Catholic affiliation, ran from 1894 to 1956. After John Kennedy’s 1960 election to the presidency brought Catholics into the political mainstream, presidents felt less pressure to recognize voters in that group. Instead, for Scalia, Roberts, Alito, Brett Kavanaugh and Amy Coney Barrett, their religion signaled ideological affinity (especially on abortion) with their conservative appointing presidents (Ronald Reagan, George H.W. and George W. Bush, and Donald Trump).

Likewise, a string of Jewish nominees commenced in 1916 with Woodrow Wilson’s appointment of Louis Brandeis, followed by Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg and Abe Fortas. As the immigration history of Jewish Americans faded, so did their seat on the Supreme Court, when Fortas left in 1965. In Bill Clinton’s 1993 nomination of Ruth Bader Ginsburg, her gender, liberal philosophy, compelling personal story and pioneering advocacy for gender equity were more significant to the president than her Jewish identity. Simultaneous service with fellow Jewish justices Stephen Breyer and Elena Kagan indicated that their faith no longer required one symbolic seat on the Supreme Court.

As race rose to the top of the political agenda during the civil rights era, highlighted by Thurgood Marshall’s brilliant leadership of the NAACP’s Legal Defense Fund, President Lyndon Johnson knew he had the perfect candidate to create a Black seat on the court in 1967. Marshall’s retirement in 1991 set off a scramble in the George H.W. Bush administration to find a conservative Black jurist to fill the position. Marshall’s and Thomas’s service illustrates the two distinct types of representation — the former actively supported the causes of African Americans in his judicial decisions and the latter passively mirrors that demographic but has voted against its policy preferences in affirmative action and voting rights cases, for example.

Although Reagan renounced affirmative action, he faced a gender gap in the 1980 election; a higher percentage of men supported him than women. Foreshadowing Biden’s promise to appoint the first Black woman justice, Reagan announced that one of his first nominees to the Supreme Court would be a female. Shortly after Potter Stewart announced his retirement in 1981, Reagan named Arizona appellate court judge Sandra Day O’Connor to her historic role. Year after year, during my fellowship at the court and subsequent visits, I saw women from around the world embrace her as a symbol of gender equity. Like Marshall, she actively represented her gender through votes and opinions in cases. In addition, she once observed that Marshall was crucial to discussions among the justices because he brought a unique experience to the table based on his race. 

In 2005, President George W. Bush tried to replace the retiring O’Connor with another woman, his Texas friend and White House counsel Harriet Miers, but conservative Republicans considered her too moderate to fill the court’s decisive “swing seat” and forced Bush to withdraw his first choice and nominate Alito. 

President Barack Obama’s 2009 appointment of Sotomayor, the first Latina justice, signaled that ethnicity had become a representative criterion in balancing the court’s appearance. Not only did the first Black president make the tribunal more diverse, but he arguably hoped to counter the success that George W. Bush had achieved in attracting Hispanic voters to the Republican Party.

Biden’s presumed candidate — who likely will become both an active and symbolic representative for Black women — will follow in the footsteps of these pioneers who broke barriers and inspired those in their demographic to attain their highest goals. Yet the irony of a representative Supreme Court remains. Because its members are, by design, insulated from electoral politics through their lifetime appointments, the institution’s separation from the vox populi opens it to charges of illegitimacy or at least anti-democratic tendencies. To bolster the validity of its decisions and edicts, for which it has very little enforcement power, membership diversity serves a vital purpose. 

As long as merit remains at the threshold of judicial nominations, a Supreme Court that looks more like America can fulfill the late Chief Justice Charles Evans Hughes’s aspirational proclamation at the laying of the Marble Temple’s cornerstone in 1932: “The Republic endures, and this is the symbol of its faith.”  

Barbara A. Perry is Presidential Studies director and Gerald L. Baliles Professor at the University of Virginia’s Miller Center. She served as a fellow at the U.S. Supreme Court in 1994-95. Follow her on Twitter @BarbaraPerryUVA.

Tags Amy Coney Barrett Barack Obama Biden nominee Bill Clinton Black women Brett Kavanaugh Clarence Thomas Donald Trump Elena Kagan Joe Biden John Kennedy Jurists Ruth Bader Ginsburg Samuel Alito Sonia Sotomayor Stephen Breyer Supreme Court of the United States

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