After Justice Sandra Day O’Connor announced her retirement from the Supreme Court this summer, Eleanor Smeal, president of the Feminist Majority, lobbied for another woman to replace her. “We cannot go back to just one woman on the highest court in the nation. The era of tokenism is over,” she said.
After the death of Chief Justice William Rehnquist created a second opening, Sen. Lindsey Graham, R-S.C., declared: “You want your institutions to reflect the body politic of the country. There are plenty of conservative women and African-Americans and Hispanics to choose from, and I would be very pleased if the president reached within that pool of Americans and elevated one of them to the highest court on our watch.”
As senators and interest groups debate a second nomination in the space of a few weeks, it’s easy to forget that the Supreme Court was never intended to be representative of the population as a whole. That’s why we have Congress.
But that doesn’t mean it’s inappropriate to examine the court and its place in American society.
Q. Just how much do the nine justices look like the United States?
A. Not very.
A numbers game
At this point, it would be wise to remember that statistical comparisons are pretty much a parlor game when your sample is only nine people. As judicial historian Barbara A. Perry established in her groundbreaking 1992 book, “A ‘Representative’ Supreme Court? The Impact of Race, Religion, and Gender on Appointments,” such comparisons are overly simplistic.
But surely there is some significance to the fact that the court is 78 percent male in a majority-female nation. Or that 100 percent of the justices are between 50 and 85 years old, compared with only 26 percent of the country.
As derived from the statistics in the accompanying chart, the Supreme Court is a hyper-educated, white, married man of retirement age who lives on the East or West coast and attends a Catholic or Episcopal church or a synagogue. It’s a symphony and Chardonnay kind of crowd.
The country is vastly fuzzier. Americans as a whole are much, much younger, and nearly half are single. Only about 22 percent graduated from college. A plurality lives in the South. It’s a NASCAR and Bud bunch.
If she is confirmed, how would White House counsel Harriet Miers affect that mix?
For one thing, she would introduce an element of evangelical Christianity to the court, perhaps bringing one the country’s most powerful cultural and political influences into the justices’ discussions.
She would broaden the court’s legal perspective: Seven of the nine justices earned their law degrees in the Ivy League, while the two others — O’Connor and John Paul Stevens — got theirs at the equally elite Stanford and Northwestern law schools. Miers’ comes from Southern Methodist University.
Furthermore, all of the current justices had been judges before their elevations. Miers has never been a judge.
She would expand its regional flavor. Only Clarence Thomas, among the current justices, comes from the South, but he has lived most of his professional life outside the region. Miers is very much from and of Texas.
Miers is single. Eight of the current justices — the exception is David Souter — are married.
It is your father’s Supreme Court. If Miers is confirmed, that wouldn’t really change, but it would — demographically speaking — look just a little more like the rest of us.