Supreme Court needs a broader definition of diversity

After the death of Justice Antonin Scalia, the remaining eight justices of the United States Supreme Court are surprisingly similar to one another. Each went to law school at either Harvard (Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy and John Roberts) or Yale (Samuel Alito, Sonia Sotomayor and Clarence Thomas). Each hails from a coastal state. None is Protestant. Not one has worked as a criminal defense lawyer. As the New York Times recently noted, Scalia himself (who shared all these characteristics) decried this uniformity in a dissent to the same-sex marriage decision last year.

Certainly, the racial and gender diversity of the current court is both worthwhile and a sharp break from the past. President Obama's prior choices contributed to it. This time, though, he should consider breaking the mold that has been too firmly set. Diverse perspectives arise from factors beyond race and gender, after all.

First, consider the strange duopoly of Harvard and Yale. Those names are powerful identifiers — more powerful, at times, than even race and gender. They label young lawyers like a BMW logo, shaping expectations and perceptions. They don't have to prove they are smart; it is presumed. When I was a student at Yale, we often found ourselves discussing law as if we 20-somethings were its creators. It should not surprise us that the products of those schools sometimes carry that same arrogance onto the bench.

Geography matters, too. The map of this court's birthplaces leaves a yawning gap from Georgia to California, though it should be noted that Chief Justice John Roberts in large part grew up in Indiana (his family moved there when he was in fourth grade). Roberts is alone in that respect, on a court that has no member from Chicago or the entire state of Texas.

If you doubt that people are shaped by where they grew up, consider the questions you ask someone you are getting to know. The place we are from is a central part of our self-definition. We act as if it matters with presidents: We cared that Clinton was from a town called Hope in Arkansas, that Reagan was from Illinois and that George W. Bush was raised in Texas. In each, we recognized that the broad spaces in the middle of the country shaped their perspectives. The same should be true with the court.

It is, admittedly, a historical accident that no one on the court is Protestant. Presidents Reagan, Bush, Clinton, Bush, and Obama did not collude to favor Catholics and Jews. Yet, somehow, the plurality faith in the nation is not represented on the Supreme Court. Neither are the "nones," that growing group of Americans who have no religious affiliation.

Many would argue that this shouldn't matter — that we are "beyond religion" on the court, which shapes the secular law of a nation that increasingly is leaving faith behind. While I would agree that justices should not vote out of religious conviction — just as they should not vote by dint of their own race or gender — it is in the very nature of faith that it shapes a person's sense of what is right and wrong and what issues are important. We may not be able to fully account for the influence faith has on an individual justice's actions, but we should still value a diversity of viewpoints. This is especially true as the court continues to consider issues such as the death penalty. Within that realm, the justices' individual views of what is "cruel and unusual" have become important, and that delicate strand of morality is subtly shaped by faith.

Finally, it would be wise and remarkable to place a current or former member of the criminal defense bar on the Supreme Court. While two members of the current lineup were prosecutors (Sotomayor and Alito), none has made a living defending citizens accused of crimes. A deep and abiding understanding of the cost exacted on defendants by criminal procedures, searches and sentences is lacking in the very place those elements of the law are reviewed and shaped. We can do better.

Am I demanding that Obama find and nominate a former defense lawyer from the Midwest who went to Hamline and counts herself a Methodist? Of course not. But in the hopper with everything else, these aspects of a potential nominee deserve consideration. Each of them — schooling, geography, faith and knowledge of the hardships criminal law inflicts — has power to shape the conscience of that potential future justice who will shape the nation.

Mark Osler is Robert and Marion Short Distinguished Chair at the University of St. Thomas School of Law.