Balkinization  

Friday, July 02, 2010

Diversity Revisited

Mark Graber

No Protestant will sit on the Supreme Court of the United States if Elena Kagan is confirmed by the Senate. Many distinguished scholars, valued colleagues and well meaning friends are troubled by this possibility. They fear a Supreme Court with six Catholics and three Jews is insufficiently diverse. I believe these worries are misguided. Our diversity concerns should focus on historically underrepresented groups, not on achieving demographic balance.

Sample size is one reason for rejecting concerns about a Supreme Court with three Jews and six Catholics. Worrying about the lack of Protestants on the Supreme Court in 2010 is a bit like worrying about the number of Irish cellists in the Boston Symphony. We might be concerned if no Irish-American ever played for the Boston Symphony or if there are no Irish cellists in the United States or, perhaps, even if the Boston Symphony has never had an Irish cellist. The mere lack of an Irish cellist at present (I have no clue about the actual ethnic makeup of the Boston Symphony) is probably little more than a statistical oddity and unreflective of broader social practices. The present religious makeup of the Supreme Court seems a similar statistical oddity unreflective of broader social practices. Protestants have long been overrepresented on the Supreme Court, in the federal judiciary, in state judiciaries, and in most government offices. Protestant voices will be heard, even if no Protestant is on the Supreme Court. In a country where every President but one has been a Protestant, we might pause before demanding the Supreme Court demographically represent the United States.

Many standard justifications for diversity are substantially weaker when our concern is the temporary underrepresentation of historically overrepresented groups. Many people believe with good reason that (almost) every person of color in the United States suffers some disadvantages solely because they are not white. Few mainstream Protestants can plausibly claim that they are consistently victims of subtle religious biases. Members of historically under represented groups have important perspectives that are often invisible to decision makers unless some representatives of those groups are at the decision table. Few decision makers require the presence of a mainstream Protestnat to be aware of mainstream Protestant values. Living in the United States for a long period of time is sufficient.

My parents witnessed too many “No Jews (or Irish Catholics) Wanted” when they first applied for jobs. I suspect Elena Kagan’s parents have similar stories. We should not hang the same sign over the Supreme Court, even for one vacancy.

Cross-posted at Quoth the Raven: The University of Maryland Law Faculty Blog

Comments:

We need some atheists on the Supreme Court. The nomination hearings would be very entertaining.
 

We may have some atheists on the Court (I am not speculating about anyone in particular). What we need are some who will admit to being atheists. I understand that they can't do that and be confirmed, but, once they have a lifetime appointment, they would do the nation a favor to come out of the closet. Speaking of which, one could say the same for the gay justices, if there are any.
 

The confirmation hearings for a Muslim would probably be even more entertaining than for an atheist or homosexual.
 

My concern about the current court makeup isn't lack of diversity, it's that several of the Catholics appear to be doctrinaire - which wouldn't necessarily be bad if it didn't show up so blatantly in their opinions on issues to which religious persuasion is relevant.

It's my understanding that J Thomas will vote against any constraint on state government violation of the 1A EC since he rejects the whole idea of incorporation. J Scalia apparently considers any governmental "encouragement" of religious participation that doesn't involve physical (or maybe extreme psychological) coercion OK. Based on their recent C-S case opinions, it appears that J Alito consider the appropriate test to be degree - a little EC violation is OK if it doesn't directly affect very many people and if enforcing the EC would upset more people than violating it would. And so far, CJ Roberts seems a reliable accompanying vote with those three.

So, even though we (or at least, I) don't know how J Sotomayor leans and I don't worry much about J Kennedy since he seems to "swing", with four votes against EC enforcement almost guaranteed, a little concern seems quite justified - whether or not there is a causal relationship between those four J's Catholicism and their votes.
 

"J Thomas will vote against any constraint on state government violation of the 1A EC since he rejects the whole idea of incorporation."

Thomas thinks the EC is a federalist protection device so in effect wouldn't be incorporated. He does think the BOR applies to the states via the P/I Clause of the 14A, including the Free Exercise Clause of the 1A applying to the states.

Sotomayor joined with Stevens in a cross display case, so appears to be at least somewhat liberal on the issue of the EC.
 

"It's my understanding that J Thomas will vote against any constraint on state government violation of the 1A EC since he rejects the whole idea of incorporation."

Just out of curiosity, Charles, where did that notion come from?
 

Sample size is typically NOT a defense in EEOC cases. If members of a protected class are selected at a rate of less than four fifths of the another group, or are less that two or three standard deviations below the number that would be expected from random selection, they are victims of 'adverse impact.' Oh, right. "Protected" groups. Some animals are more equal than others.
"Many standard justifications for diversity are substantially weaker when our concern is the temporary underrepresentation of historically overrepresented groups." Temporary being, oh, possibly for the next 25-30 years or more. Hmmm.
 

If put as merely a "Protestant" it becomes somewhat trivial. But what about the lack of evangelicals in a country where they are easily the largest cultural minority? Is that so different than (say) a lack of any blacks or women in, oh, 1950?
 

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