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Diversity and merit

Shortly after Republican Gov. John Kasich took office, he was lambasted for choosing a cabinet which lacked diversity:  of his first twenty full-time agency director hires, sixteen were men, and every single one was white.  Kasich had a ready defense:  "I don't look at things from the standpoint of any of these sort of metrics that people tend to focus on, race or age, or any of those things," Kasich told the press. "It's not the way I look at those things.  I want the best possible team I can get, and hopefully we will be in a position that we are fully diverse as we go forward.  But I can't say I need to find somebody to fit this metric, not when I am trying to get a state that is in deep trouble out of trouble."

That's a compelling argument, at first blush:  "I'm not looking at a person's race or gender.  The only thing I'm concerned about is a person's merit."  Hard to think of anything more American than that.

But maybe not.  Back in 2002, the Supreme Court heard oral argument in Virginia v. Black, a case involving three defendants who'd been convicted under the state's law banning cross-burning.  Everybody figured that the state had an uphill climb; ten years earlier the Court had struck down a local ordinance in Minnesota which prohibited anyone from placing a symbol "including, but not limited to, a burning cross or Nazi swastika, which one knows... arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender."  But during the oral argument in Black, Justice Thomas spoke up about the singular significance of the burning cross:  it was "unlike any other symbol in our society.  It was intended to cause fear, terrorize."

Nobody but a black justice could have said that and had the same impact.  So diversity can have some value.  Women, blacks, Asians, people in wheelchairs, all bring different perspectives to the table.

So why is the Supreme Court less diverse than at any time in its history?

That's the conclusion of a paper done by University of Tennessee Law Professor Benjamin Barton.  He's not talking about racial or gender diversity here, though, or even what might be called "academic diversity":  the fact that every single justice is from Harvard or Yale.  Barton is looking at experiential diversity, and to do that he went to the trouble of gathering "the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan."

The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere:  The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court.

So what?  I've known lawyers who have been been practicing for 30+ years, and  trial judges who've been on the bench for decades, and I wouldn't trust them to wash my car, let alone make crucial interpretations of our Constitution.  And politicians?  Please.

But Barton's not content to mine the data for delicious factoids (the average Supreme Court justice in the country's history had sixteen years of private practice experience; the average Roberts Court justice has four), he argues that this is bad for the country.  Much of this is you-say-tomahto-I-say-tomayto:  as Barton admits, his conclusions here aren't capable of rigorous empirical analysis, and where you wind up depends to  a certain extent upon where you came in.  If you believe the current Court is doing God's work, you're much less likely to believe that its lack of other types of experience is a negative factor.

I think Barton is onto something here, though.  As he mentions, the Court is primarily responsible for adoption and amendment of rules of practice and rules of evidence.  Having those decisions made by justices who've rarely, if ever, had to worry about the application of those rules in an actual courtroom setting is a problem.  In fact, some awareness of what actually goes on in the courtroom can't help but be advantageous to an appellate judge.  I had a case a while back where the trial court admitted into evidence the police report.  The fact that this is specifically prohibited by the rules was the least of the problems; the report was filled with the officer's observations, despite the fact that they'd never testified.  The first question I got in oral argument on appeal, from a judge whose only experience with felony trials was vicarious, was, "Well, you could have subpoenaed the police officers, couldn't you?"

But it goes beyond that.  The notion that Supreme Court justices merely interpret the law is pure whimsy.  Whether Obama's health care reform is going to remain the law of the land isn't going to be decided by Congress or by American people in the upcoming election; it's going to be decided by Anthony Kennedy.  Just this past week, decisions by the 3rd and 9th Circuits portended that gay marriage, one of the most contentious issues on the current political landscape, is going to be resolved by the Court.  One of the most elementary and critical aspects of our democracy, how we fund our political campaigns, was decided by a 5-4 vote of the least democratic branch of our government.  If the Supreme Court's going to be deciding policy, Barton argues, it "needs Justices with real life experience, individuals who... understand the ramifications of broad social policy."

This dovetails with something I wrote when the Court came out with its decision last year in Kentucky v. King.  I pointed to the Court's earlier decision in Whren v. US, which held that as long the police observed you commit a traffic violation, they could pull you over even if the violation was actually a pretext to attempt a more expansive search.  The result was the cases that regularly find their way onto my Bullshit Traffic Stop of the Week™:   cases where the cops stopped you because you didn't put on your turn signal when changing lanes, or when pulling away from the curb, or at least 100 feet from an intersection, or pulling out of your driveway, or -- so help me God -- on suspicion of excessive window tinting.

Check that.  It wouldn't be you who would be stopped, because somebody reading this blog probably isn't within the demographic of people likely to be stopped for those "reasons" -- somebody poor, somebody black, somebody unfortunate enough to find himself living in the "high crime areas" of a city.

Well, someone sitting on the US Supreme Court isn't within that demographic, either, and I wouldn't expect them to be.  But far more troublesome is that someone sitting on the Supreme Court has never met anybody likely to be within that demographic, never worked in an area where they were at all likely to come into contact with someone within that demographic, or have the slightest inkling of how somebody in that democraphic would be affected by the decisions they make.


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