Strive for true diversity on high court

By Todd Collins and Gibbs Knotts


U.S. Solicitor General Elena Kagan’s nomination to the U.S. Supreme Court increases gender diversity on what has historically been a male-dominated institution. If confirmed by the U.S. Senate, Kagan would become the third woman serving on the current Supreme Court and the fourth female justice in the court’s history.

While we applaud President Barack Obama for adding to the gender diversity of the nation’s highest court, the makeup of the current Supreme Court lacks diversity on several other key dimensions. For example, if Kagan is confirmed, the court would include no Protestants, even though a recent study reports that more than 50 percent of the nation is Protestant. Kagan would be the third Jewish member of the court, along with the six Catholics currently serving. Less than 2 percent of the nation is Jewish and just under 25 percent is Catholic.

The current Supreme Court also lacks geographic diversity. Kagan would be the fourth justice raised in New York City and the fifth justice from either New York or New Jersey. While these two states represent around 9 percent of the total U.S. population, 56 percent of the seats on the high court would be filled by people from a geographically narrow region of the country.

If we include Chief Justice John Roberts, who was born in New York but largely raised in Indiana, this would increase New York/New Jersey natives to 67 percent.

And, while the South represents nearly 36 percent of the U.S. population, Justice Clarence Thomas is the only justice from a Southern state. A geographically balanced court would include three seats held by Southerners.

The current Supreme Court also is dominated by federal appellate judges. This experience is undoubtedly important for members of the nation’s highest court, but more exposure to lawmaking and governing decisions also would add to the court’s diversity.

Retired Justice Sandra Day O’Connor brought her experiences as an Arizona state legislator and former Chief Justice Earl Warren drew upon his time as governor of California.

Kagan adds some diversity of experience to the Supreme Court because she has not served in the federal judiciary, but she does not bring the views of an elected official — a perspective absent on the current court.

Although we do not believe the current membership of the Supreme Court will intentionally trample on the rights of any particular groups, having a diverse court on a wide variety of dimensions will likely enhance the court’s decision-making process.

A Supreme Court that “looks like America” will offer greater insight into the issues and cultural norms of the day. On the Supreme Court, deliberations were likely different after O’Connor, the first female justice, joined the court.

Moreover, evidence from lower courts suggests that judicial outcomes may be different when diverse judicial panels decide cases, at least on certain issues.

In addition, and perhaps most importantly, decisions rendered by a court representing the general makeup of society will have increased legitimacy.

Because the court has no ability to enforce its own rulings, it must rely on other branches of government and the citizens to respect and uphold its decisions.

When other government leaders or citizens question the authority of the Supreme Court, decisions can be ignored or intentionally violated.

Kagan’s education and professional background rivals (if not exceeds) those of other successful Supreme Court nominees.

We hope that future nominees, however, will also add to the court’s diversity in other important ways.

While we may not see evidence of diversity’s impact through significantly different case outcomes, a court that reflects societal makeup will increase perceptions of the court’s legitimacy and assure that a variety of viewpoints are represented.

Todd Collins, assistant professor of political science and public affairs at Western Carolina University in Cullowhee, N.C., received his doctorate in political science at the University of Georgia.

Gibbs Knotts, associate professor and head of the department of political science and public affairs at WCU, received his doctorate in political science at Emory University.