December 31, 2015

Supremely Elite: The Lack of Diversity on Our Nation’s Highest Court

by Eric Segall

Perhaps no governmental institution in America is more removed from the day-to-day lives of the American people than the U.S. Supreme Court. Every current justice was educated in an Ivy League law school (eight of the nine graduated from Harvard or Yale). There is no justice from the middle part of our sprawling country; only one is from the Deep South. None of the current justices have held elected office and had to worry about being politically accountable. Only two justices have practiced law in a trial court. The justices are almost as detached from normal legal practice as they are from the lives of ordinary citizens.

Not only are the justices selected from a small group of similar, elite lawyers, but the Court as an entity also makes great efforts to hide itself from the American people. The Court’s oral arguments and decision announcements are not available on video, live or even taped. The justices never give official press conferences, and their official taxpayer-funded papers are often shielded from public view for decades or more (Justice Souter sealed his papers for 50 years).

The majestic plaza in front of the Supreme Court building is a protest free zone where even peaceful First Amendment activities are forbidden, which should be a clear constitutional violation. Court visitors must enter through a small side door symbolizing the lack of general public access to the “marble palace on the hill.”

Even the Court’s oral arguments are given by what is little more than a group of close friends and colleagues arguing to each other about the most important and divisive legal, moral, and social problems of our time. In December 2014, a ground-breaking Reuters report, available at www.reuters.com/investigates/special-report/scotus, showed that a small group of lawyers are given special opportunities to represent their clients before our highest Court.

The study examined nine years at the Court and found that an elite cadre of 66 attorneys (out of 17,000) had a vastly disproportionate chance of getting their clients’ cases before the justices. Although these 66 lawyers accounted for less than one percent of all lawyers filing appeals in front of the Court, they accounted for a whopping 43 percent of cases the Court agreed to hear. Of the 66 attorneys, almost 50 percent had clerked for the justices, and most were white, male, and working for law firms primarily representing large, corporate interests. One of those privileged few, Michael Luttig, observed that the practicing Supreme Court Bar “has become a guild, a narrow group of elite justices and elite counsel talking to each other . . . [and grown] detached and isolated from the real world, ultimately at the price of the healthy and proper development of the law.”

Even more astounding than the small group of lawyers given special access to the Court, eight of the nine justices explicitly defended the practice of taking into account the skills, credentials, and experience of the lawyers when deciding which cases to hear (Chief Justice John Roberts would not be interviewed). For example, both Justices Scalia and Thomas suggested that in “marginal cases,” the skills of the attorney may tip the balance against the granting of certiorari. Former Justice John Paul Stevens said that he saw “no downsides” to a small, elite group of lawyers having unique access to the Court because “they earn respect by their performances. And because they have respect, they are more successful.”

In virtually every respect other than perhaps gender and racial diversity, the Supreme Court is a cloistered, secretive, elite, and intellectually and socially removed institution. Does it matter? Yes, and here’s why.

First, although the Court is supposed to decide discreet legal issues, it often resolves important social questions with enormous political and real-world ramifications. But these decisions often affect aspects of American society that the justices simply don’t understand, given their cloistered lives and narrow work experiences. This gap between the cases the Court has to hear and the consequences on the ground has been a problem for a long time (but it is getting worse as the Court becomes less diverse in a professional sense).

After Brown v. Board of Education in 1954, the Court allowed segregated states to comply with the decision “with all deliberate speed.” In 1963, almost a decade later, the South was still almost entirely segregated; roughly 98 percent of public elementary and secondary schools in 12 Southern states were still all white or all black. Gerald Rosenberg, The Hollow Hope (2d ed. 2008).

The explanation may lie in Southern resistance or lack of a judicial will to back up the controversial decision. But it may also be that the justices felt they had to discard “separate but equal” as a formal and symbolic matter (perhaps because of the Cold War) but were so removed from the Southern way of life and what public schools in that region were actually like that the justices didn’t feel the need to interfere directly with that system of apartheid. It took the Civil Rights Act of 1964 to force real legal change.

More recently, the Court has decided numerous cases that reflect how out of touch the justices are with many segments of the American people, including those who need the Court most. In 2012, in the Court’s first Obamacare decision (NFIB v. Sebelius), the justices ruled that the Medicaid expansion part of the law was unconstitutional, striking down a federal statute on spending-power grounds for the first time since the New Deal. After the decision, governors in 24 states declined (mostly for political reasons) to accept the new Medicaid program and the massive financial assistance that came with it, leading to tens of millions of poor Americans being left out of Obamacare and thus unable to obtain health insurance. The Court’s analysis (agreed to by seven of the nine justices) is devoid of any awareness or even sympathy for the desperate situation of this country’s lowestincome earners unable to afford either health care or health insurance. The decision also led to the closing of numerous hospitals serving the poor in rural areas throughout the United States. See http://www.addictinginfo.org/2014/01/10/gop-refuse-medicaid-expansion.

The Court’s distance from the lives of ordinary people was also reflected in its 2014 decision, McCullen v. Coakley, striking down a 35-foot buffer zone around family planning clinics in Massachusetts. The law was passed because of violence arising out of anti-abortion protests by right-tolife advocates—two clinic workers had been shot and killed in 1994. The case admittedly raised difficult free speech and right-to-choose issues, but the description of pro-life protesters demonstrated how out of touch the justices are with poor women whose only choice for medical assistance with abortions is the very clinics covered by the law.

Chief Justice Roberts, writing for himself and the Court’s four moderates, paid lip service to the idea that many pro-life advocates engage in “protests” outside abortion clinics but referred to the actual defendants as “sidewalk counselors” who “maintain a caring demeanor, [and] calm tone of voice” while trying to gently persuade women not  to exercise their constitutional right to terminate their pregnancies.

This description, of course, ignores the many instances of violence toward women and doctors at abortion clinics and the much more aggressive techniques used by many in the pro-life movement to impede women entering these clinics. See http://www.msnbc.com/msnbc/women-choice-abortionviolence. Prior to the law’s enactment, for example, pro-life protesters, according to a brief in the case, “wore Boston Police Department hats and shirts and stationed themselves, carrying clipboards, at the garage entrance, demanding that patients give them personal information. Protesters would attack clinic escorts with umbrellas [and] . . . would follow them around screaming invectives, often through bullhorns.”

Whether the Court was right or wrong in its ultimate legal analysis striking down the law, one has to wonder whether any of the justices had any sense of how difficult it must be for women to have to brave a torrent of intimidation in order to exercise their right to choose. If they did, you’d never know it from the Court’s opinions. Maybe the Court’s utopian view of the pro-life activities outside the clinics can be explained at least partly due to the fact that women of means usually have abortions in doctor’s offices and don’t have to weather that kind of storm.

In decisions involving state voter ID laws (Crawford v. Marion County) and the federal Voting Rights Act (Shelby County v. Holder), the Roberts Court demonstrated great insensitivity to the efforts being made by some states to disenfranchise low income people from voting. The Court has also (1) made it harder for plaintiffs to seek redress for tortious and discriminatory activities by big business, (2) enlarged qualified and absolute immunity defenses for governmental defendants, and (3) made it much more difficult for injured plaintiffs and criminal defendants to obtain judicial relief through a series of jurisdictional decisions, all too often closing the courthouse doors to those who need relief the most. Erwin Chemerinsky, Closing the Courthouse Doors, 14 Green Bag 2d 375 (2011).

The common denominator in most of these cases is the Court siding with either big-moneyed interests or governmental defendants against everyday folks suffering injuries or trying to exercise their constitutional rights. There are some notable exceptions (plaintiffs asserting Second Amendment and religious rights come to mind), but the overall pattern is crystal clear.

Is there a connection between the commonality of the justices’ sheltered educational and legal experiences and the Court’s lack of compassion for the ordinary problems of most Americans? It is always hard to speculate about the motivations that determine judicial decisions, but, if familiarity breeds sympathy, it is not surprising that there is a huge gulf between most of America’s needy and our nation’s highest Court.

Eric Segall

Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, where he teaches courses on the federal courts and constitutional law.