July 04, 2015 Practice Points

Closer Read of Justice Scalia's Dissent Shows a Hollow Paean to Diversity

By Handel Destinvil

Justice Antonin Scalia, in his dissenting opinion to the recent Supreme Court same-sex marriage decision, Obergefell v. Hodges, makes a seeming paean to the importance of diversity, in a rather cynical manner. In his dissent, Justice Scalia chastises the "select, patrician, highly unrepresentative panel of nine" for its gay marriage ruling, and in a detailed examination of the biographic particulars of the Court states:

[T]he Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

To anyone informed or concerned about diversity in the legal profession, its "highly unrepresentative" nature is well known. For example, according to Bureau of Labor statistics, 88 percent of lawyers are white. Numbers are even more dramatic when measuring the number of minority associates at major law firms and those who serve as general counsel of large corporations.

Highlighting and correcting such disparities in the legal profession was not even a peripheral aim of Justice Scalia's dissent, nor would it be consistent with his own thoughts. As he himself has publicly stated, most recently in February of this year, Justice Scalia does not think that cultural diversity among the nine members of the nation's highest court is "a good idea" and that because the court's job is to interpret the Constitution and not be representative of the U.S. populace, "[y]ou don't want diverse people, you want good lawyers".

So one is left to ask, what was Justice Scalia's purpose in dramatically detailing the make-up of the Court and its lack of cultural diversity in relation to its decision on same-sex marriage?

Here, the reader is well advised to recall the 2003 case, Lawrence v. Texas, in which the Supreme Court decided by a 6–3 margin that anti-sodomy laws were unconstitutional. In his dissenting opinion, Justice Scalia caustically stated that "[t]oday's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct." Further attacking the majority decision as the product of an elite, Justice Scalia added that "[s]o imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously mainstream."

It would be hard to not see the same thinking as underlying his less disdainful but equally critical dissent in Obergefell: that support for gay marriage is a norm for coastal elites and cloistered judges in the federal bar but an oddity in the remainder of the United States.

Here, Justice Scalia is provably incorrect. A 2014 Washington Post-ABC News poll, found that at 56 percent, a majority of Americans supported gay marriage before the decision. Broken down by region, there was a high of 65 percent in the Northeast, and sizable percentages of 59 percent and 61 percent, respectively, in the Midwest and West. The only region, where a majority did not support gay marriage was the South, but even there, the poll found 46 percent of the polled region in support of gay marriage with 47 percent not in support. Other polls have found similarly.

In short, a lack of diversity is certainly an issue of paramount importance in the law, but the Obergefell decision was not inconsistent with popular sentiment, as Scalia would suggest. Of course, even barring public support for same-sex marriage, the Court has made it clear that not every individual right should be subject to public referenda. However, what the polling data should clearly show is that the majority decision that Justice Scalia derided as a "judicial Putsch" and "social transformation without representation" was anything but.

Keywords: minority trial lawyer, litigation, Justice Scalia, same-sex marriage, dissent, diversity

Handel Destinvil, Esq., is with the Superior Court of New Jersey in Essex Vicinage in Newark, New Jersey.


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