Despite the increased number of women on the Supreme Court and one black and one Latin jurist, there is a remarkable sameness in the backgrounds of the members. So writes, Dahlia Lithwick in a recent essay. (“Nine of a Kind,” by Dahlia Ltihwick, New Republic, Nov/Dec 2014, pgs. 30-31) 71% of Obama’s nominees have practiced primarily in corporate or business settings and all of them attended Ivy League schools, namely Harvard or Yale. There is not a single justice from the heartland. None has held elective office. And, says Lithwick, the Court has become “worryingly cloistered.” ( (Ibid, pg 30) Their sessions are neither televised nor broadcast and many judges’ speeches are not publicized, rendering their opinions removed from public review.
Lithwick worries that this insular environment, together with their homogenous life experiences, leaves the judges with blind spots. (Ibid pg. 31) What seems to be valued in the Roberts’ Court are labyrinthian debates on points of arcane law rather than arguments based upon “moral truth” — the kind former Justice Sandra Day admired in the writings of Thurgood Marshall. According to her, he often drew from his personal life and that conviction had the power to sway the Court’s decisions. Unfortunately, when Justice Sonia Sotomayor, the Latin member of the court, spoke with passion concerning affirmative action, Chief Justice Roberts chided her for “elevating ‘policy preference’ over rigorous doctrine.” (Ibid pg 31)
Comments like Roberts’ lead Lithwick to ask if the Court, so polished academically, isn’t handicapped by its lack of street knowledge. Do we have jurists who too readily identify with privilege rather than the common man? How else can one explain decisions that diminish voters’ rights while granting speech rights to corporations?
Sadly, the Court seems to illustrate that being well-educated doesn’t necessarily produce wisdom. Without being tested in the fires of ordinary existence, profundity can become irrelevant.
Having been a politician from the streets, I know it’s difficult to translate the needs of the poor to elected officials who were raised in gated communities. I sometimes thought the rich and the poor actually spoke different languages. But the laws that govern the land must speak for everyone. To achieve that end, Lithwick may be right: members of the Supreme Court should come from diversified backgrounds.