America’s highest Court doesn’t reflect America (and won’t for a LONG time)

The Supreme Court Court is a pretty darn important institution to our nation. It serves as the last check on ever-expanding Presidential power and is the final preserver of democracy and our Constitution. It aint called “Supreme” for nothing.

So who are the current Justices that have been granted such enormous power? More importantly, do they collectively look like America and accurately reflect and represent the beliefs of the American people?

But before we get there, and for some perspective, let’s look at one of the most fundamental tenets of our legal system – the right to an impartial jury trial guaranteed by the 6th (criminal) and 7th (civil) Amendments to the U.S. Constitution. An essential component of having an impartial jury, dating all the way back to the Magna Carta in England, is that the jury be composed of one’s peers. The goal here is to try to ensure that the people given the power to determine your legal fate will at least, collectively, be reasonably representative of you.

There may be some folks who are capable of completely setting aside their inherent biases when interpreting evidence, judging witnesses and applying the courts instructions on the law. But my experience as a lawyer tells me that few of us can completely comply with that pledge, even if we aspire to do so. That’s because our own personal background and experience as well as our race, religion, gender and politics greatly informs our views and perspective. It’s therefore critical that juries be sufficiently diverse and reasonably reflect the community at large. For example, most hopefully can easily see a problem – from both a fairness and an optics standpoint – of having an all-White jury (however well-meaning) decide the fate of a Black person accused of a crime against a White person.

Should we expect any less from the highest court in the land of a great democracy? Shouldn’t the folks who possess the power to decide the most important legal issues that impacts our country for generations also be reasonably reflective of the people it serves?

With only nine of these lofty positions, it’s impossible to achieve perfect representation. But our current Supreme Court is, sadly, not the least bit reflective of the race, religion, gender or political views of our country.

Race:

Whites (who are not Hispanic) represent a majority of the U.S. population, but only approximately six out of ten citizens, or 60%. Yet a disproportionate 78% of the Supreme Court Justices are White. While that’s certainly a better ratio than in the first 180 years of our country’s existence – when 100% of the Court was composed exclusively of white folk – it’s still not a great look for a nation seeking true equality in representation.

What groups are under-represented? Hispanics for one. Hispanics currently constitute over 18% of the citizenry, the second largest “racial” group in the country. Yet only one Justice, Sonia Sotomayor, is Hispanic.

And Blacks are even more unrepresented on our nation’s highest Court. Yes, there is one Justice whose skin color is black which equates, in theory, to 11% representation – reasonably close to the 13.4% of our citizens who share that characteristic. But as anyone who follows the Supreme Court well knows, Justice Thomas is not even marginally representative of this racial group. It’s not just that Justice Thomas is a devout Republican, when nearly nine out of ten Blacks routinely vote Democratic. It’s that he’s arguably the single most conservative Justice on the entire Court. Ironically, Justice Thomas was chosen to be on the Court largely because he is Black – to replace the only Black Justice in U.S. history, Thurgood Marshall, who was a champion for civil rights. And yet, in his three decades on the Court (the longest of any current Justice) Justice Thomas has not been the least bit supportive of or sympathetic to civil rights issues or other issues that matter most to Blacks.

For those who think that having an essentially all-White Court is no big deal (because Supreme Court Judges are all folks of high intelligence and integrity who strive to be fair) one only need to look at what happened in 1896 when the landmark case of Plessey v Ferguson was handed down. There, an all-White Supreme Court decided that it was perfectly constitutional for Blacks to be precluded from riding the same railcar as White people and by extension, to be prevented from attending the same school, playing in the same baseball league and even using the same bathroom under the “separate but equal” farce. And, incredibly, this legal decision by the highest court in our land stood for nearly 60 years! It wasn’t until Brown vs Board of Education in 1954 when a young attorney named Thurgood Marshall finally persuaded the Court of the legal (and moral) error of its ways.

Religion

In no area is the Court more different than the U.S. populace at large than when it comes to religious views. The largest religious affiliation in the United States by far is Protestant – approximately 43% of the citizenry identify as such. Yet, shockingly, not a single Justice affiliates with this religion. (Justice Gorsuch is a member of a Protestant church but was raised Catholic and has never suggested that he has changed his religion.)

The second largest “religious” affiliation in the United States is actually the group that identifies as “unaffiliated” (26%, or more than one in four citizens). These are people who are either atheist or agnostic or, at minimum, non-religious. Yet, again, there’s not one Justice who shares the views of this substantial segment of the population.

By contrast Catholics, the third most populous religious group, are greatly over-represented on the Court. Some of my best friends are Catholics and I don’t wish to offend any of them. But only about 20% of the country’s citizens share their religious views. Yet remarkably seven out of the nine Justices (a whopping 78% of the Supreme Court) do. And the remaining two Justices are Jewish even though Jews represent only roughly 2% of the U.S. population.

Some might argue that a Judge’s religion shouldn’t and doesn’t matter – after all, don’t we have separation of church and state in this country? But you can’t convince me that a judge’s religious views doesn’t affect their legal decision. As just one recent example, the Supreme Court last year held in a controversial 5-4 decision that the Governor of New York couldn’t place certain restrictions on large religious gatherings at a Catholic Church advocated by health care experts to help curb the spread of COVID – the deadliest virus in the last century. The five Justices who supported the Catholic Church’s right to put religion before science were all Catholics. A similar decision was subsequently reached in connection with a California law seeking to restrict inside religious services. The 6-3 decision was supported by, you guessed it, six Catholics. Is that simply a coincidence?

Gender

It’s no surprise that women are significantly underrepresented on the Supreme Court, just as they are in the Senate, the House of Representatives, the judiciary and most of society. We currently have the most female Justices on the Court in history- three. That’s significant progress when you consider that it took over 190 years for the Court to get its first woman Justice (and when there have only been five in the entire history of the Court!) But this does not eliminate the disparity. There are more women in this country than men, and yet 2/3 of the Justices are still male.

This seems particularly unfair and inappropriate when it comes to issues uniquely impacting women’s rights – be it abortion, health care coverage for contraception or sexual discrimination and harassment. The Supreme Court just announced this week that it will take up the issue of whether states can ban abortions before a fetus can survive outside the womb. I suspect that the only reason the Justices agreed to take up the issue is because they intend to overturn or significantly alter the landmark ruling of Roe vs Wade that has stood for nearly 50 years. Whatever your views may be on this highly controversial issue, it’s really not a good look for men to be essentially dictating the law in this area. (If it all goes down as I suspect, I predict that the majority will have the opinion written by Amy Coney Barrett, the only woman Justice who is conservative, to try to create better optics and the false illusion that men aren’t really the ones deciding this issue.)

Political Affiliation

Finally, the Supreme Court is not reasonably reflective of the political views of the citizenry it serves. Some might say that the judiciary is independent by design and is not tied to any political party or pressure. That is indeed what the framers of the Constitution hoped to accomplish by granting essentially a “lifetime” appointment to the job that sometimes enables extremely old people to serve in this critical mentally-taxing position. The founders’ philosophy worked for awhile; back when judges were selected primarily based on legal acumen, scholarship and integrity. There was time not long ago when Judges were expected to have an open mind before hearing a case and treat every matter fairly, objectively, and with due consideration to the rule of law. But today, no federal Judge gets appointed unless he/she has committed in advance (usually in extensive prior opinions or publication of treatises) to positions that align comfortably and completely with the political agenda of the party in power. Today, the decision about who should interpret and uphold the law of the land has never been more political.

Worse, the composition of this most important branch of government is largely dictated by random luck – the happenstance of which party is in control in the White House and the Senate at the point in time when an existing judge dies or resigns. So it’s never been more important that the Court at least reasonably reflect the political demographics of the nation as a whole. But let’s look at the numbers.

As of December 2020, 31% of Americans identified as Democrats, 25% as Republicans and 41% as “Independents.” One would expect these labels to essentially equate to folks who are “liberal,” “conservative” and “moderate” respectively.

Under this assessment, liberals are reasonably represented on the Court; they constitute 31% of the population and make up 33% of the Court members. Conservatives, on the other hand, are hugely over-represented; they constitute only 25% of the citizenry but have nearly three times their numbers, at 67% representation on the Court.

And the big loser? Moderates. Despite 41% of Americans identifying essentially as moderates, they have ZERO representation on the nation’s highest court (to go along with virtually no representation any more in the Senate and House of Representatives). And no, Justice Roberts shouldn’t be considered a “moderate” merely because he has occasionally sided with the liberal wing of the Court and isn’t a “far right” conservative.

Some of us who believe in a non-political judiciary may take comfort in the fact that the current Court refused go so far as to simply hand the Presidential election to Donald Trump just because most of the Justices are Republicans or because he asked the ones he appointed to do so out of “loyalty.” And the Justices similarly refused to recognize the legally absurd claim by the State of Texas that it could somehow undo the Presidential election certifications of other states. Some take that to mean that the Justices will always put the law before their political ideology.

I don’t. Indeed, I predict that there will be some very significant decisions emerging from the Supreme Court in the next few years that reflects a highly conservative, “Federalist Society” political philosophy regardless of prior precedent to the contrary. Like Plessey v Ferguson, these decisions will likely stand for a very long time. And it won’t matter if the views of the citizenry shifts as more young people become adults, more old people die off and the country becomes more enlightened.

Moreover, it’s highly likely that we will have roughly the same demographic composition of the Court for the next several decades given the relatively young age of several of the current Justices, the longer life expectancies and the propensity of Justices to serve until late in life or death. This bodes very poorly for anyone who believes the Court should not only look like the citizens it represents but also have views that bear a reasonable resemblance to those of the nation as a whole.