Supreme Court a rather homogenous group

Topeka Capital-Journal, The, May 30, 2009

In a rare moment of hyperbole, President Bill Clinton promised to appoint a cabinet "that looks like America."

There were two problems. One, there aren't enough cabinet positions to include the great diversity of people who make up America and, two, "looks like" may not be highly indicative of the thinking of the nominees.

Now we are talking about diversity on the Supreme Court. And, here also, though individuals are of the same race, gender, religion or legal education, they may surprise their original sponsors.

The most egregious example was the succession of Justice Thurgood Marshall by Justice Clarence Thomas. They are polar opposites in their interpretations and expectations of the law though both happened to be African American.

Diversity is generally accepted as desirable. So no one was surprised when President Barack Obama nominated a Hispanic woman who spent her formative years in a housing project in the South Bronx, Sonia Sotomayor, to succeed retiring Justice David H. Souter.

But in two important areas, Obama is making the court more homogeneous. They are legal education and religion, both of which usually determine greatly how an individual perceives the world.

Sotomayor is a Yale lawyer succeeding a Harvard lawyer. The two schools produced seven of the current Supreme Court justices.

Only Justice John Paul Stevens, who graduated from Northwestern University Law School, and Justice Ruth Bader Ginsburg, who graduated from Columbia Law School, are not products of our nation's two most prominent law schools. To narrow diversity of legal education a bit further, Justice Ginsburg graduated from Columbia only because she married and moved to New York City after beginning law school at Harvard.

This leaves the court with only one justice who graduated from a law school west of the Alleghenies, which would have made more sense in 1809 than 2009. Granted, all Harvard and all Yale law graduates are not of the same mind at the time of graduation, let alone by the time they ascend to the court.

But is that enough? Surely Harvard and Yale law schools have exceptional professors who leave some of their thoughts and theories of law embedded in their students minds for all time.

In the area of religion, Obama has only added to a striking lack of diversity on the court. With the inevitable addition of Sotomayor, six of nine justices will be Roman Catholic, although Catholics make up 22 percent of our population. Two justices are Jewish and one is Protestant, the 89 year-old Stevens.

Most of the court's Catholic justices are not incidentally or nominally Catholic, at least as indicated by their speaking, writing, education and decisions. Justices Antonin Scalia and Clarence Thomas were the first wave, while Chief Justice John G. Roberts, Jr. and Justice Samuel Alito are George W. Bush nominees.

All are young as justices go. All but one have been educated in Catholic schools. Together they will make up a strong, like-minded conservative "almost majority" on the court for a long time. Their decisions and other writings indicate they are unlikely to disappoint Catholic bishops -- as have many Catholic elected officials, such as former Kansas Gov. Kathleen Sebelius and Catholics who make up nearly one-quarter of the Congress.

The exception, and thus the one who holds the deciding vote on most 5-4 decisions, is Catholic Justice Anthony Kennedy. One would expect Sotomayor's jurisprudence to resemble Kennedy's more than those of the court's other Catholics if she is, as advertised, a moderate or liberal justice.

If the president is called upon to appoint successors to Stevens or Ginsburg, he might well be looking for a white, non-Hispanic, Protestant woman who got her legal education some place other than Cambridge or New Haven. Or forget about balance and diversity.

Who would have thought the court, forever a staid old Protestant men's club, could change so rapidly?

Dr. Bill Roy is a retired physician and former member of Congress. He has a law degree and lives in Topeka. He may be reached at wirroy@aol.com.