Demographics of the Supreme Court of the United States
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The demographics of the Supreme Court of the United States have been raised as an issue in various contexts over the last century. For example, the most recent confirmations of two white male Catholic justices (John Roberts and Samuel Alito) means the Court will remain overwhelmingly white and male, while becoming majority Catholic for the first time in its history.
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[edit] Introduction
The gender and racial composition of the Court was largely stable for its first 180 years, with only a few deviations from the norm of white male Protestant nominees being appointed. Concerns about "diversity" of the Court were mainly in terms of geographic diversity, as opposed to ethnic, religious, or gender diversity.
Because members of the Court are appointed by the President of the United States and approved by the United States Senate, the demographics of the Court have political symbolism. Every U.S. President has been a white male, and all have been Protestants except for John F. Kennedy, a Catholic. Neither of Kennedy's appointments were Catholic, however - Byron R. White was Protestant, and Arthur Goldberg was Jewish. However, the Court is not a representative body, and the gender, race, educational background or religious views of the Justices has played little role in their jurisprudence; thus, Clarence Thomas and Thurgood Marshall are both black, and have similar personal backgrounds, yet have radically different judicial philosophies; William Brennan and Antonin Scalia shared Catholic faith and a Harvard Law School education, but shared little in the way of jurisprudential philosophies. Before Justice Sandra Day O'Connor's retirement, she and fellow female Justice Ruth Bader Ginsburg, while not polar opposites, voted together no more often than with their male colleagues, and no particular "female perspective" can be discerned from their opinions.
[edit] Ethnicity
All U.S. Supreme Court Justices were white until the appointment of Thurgood Marshall, the first African-American justice, in 1967. Since then, only one other non-white justice has been appointed, Marshall's African-American successor, Clarence Thomas. In statistical terms, 108 of the 110 Justices appointed, or 98.2%, have been white. There has never been more than one African-American justice on the Court at a time.
Benjamin Cardozo, appointed to the Court in 1932, was the first Justice of non-northern European descent. A few historians contend that Cardozo, a Sephardic Jew of Portuguese descent and fluent in Spanish, should also be counted as the first Hispanic Justice. The majority view is that only whites and African-Americans have ever been represented on the Court.
Justice Antonin Scalia, who is of Sicilian heritage, was appointed in 1986, and Justice Samuel Alito was appointed in 2006. They are the first justices of Italian descent to be appointed to the Supreme Court.
[edit] Gender and sexual orientation
All U.S. Supreme Court Justices were males until 1981, when Ronald Reagan fulfilled his pledge to place a woman on the Court with the appointment of Sandra Day O'Connor. O'Connor was later joined on the Court by Ruth Bader Ginsburg, appointed by Bill Clinton in 1993. The only other woman to officially be nominated to the Court was Harriet Miers, whose nomination to succeed O'Connor was withdrawn. President Richard Nixon named Mildred Lillie, then serving on an intermediate state appellate court in California, as a potential nominee to fill one of two vacancies on the Court in 1971. However, Lillie was quickly deemed unqualified by the American Bar Association, and no formal proceedings were ever set with respect to her potential nomination. Lewis Powell and William Rehnquist were then successfully nominated to fill those vacancies.
In statistical terms, 108 of the 110 Justices appointed, or 98.2%, have been men.
With regards to sexual orientation, no Supreme Court Justice has been identified as other than heterosexual. G. Harrold Carswell, who was unsuccessfully nominated by Richard Nixon in 1970, was later arrested and convicted in 1976 of battery for making an "unnatural and lascivious" advance to an undercover police officer in a Florida men's room.[1] Some therefore claim him as the first (and, thus far, only) homosexual or bisexual nominated to the Court. Nixon's Attorney General John Dean later wrote of Carswell that "[w]hile Richard Nixon was always looking for historical firsts, nominating a homosexual to the high court would not have been on his list".[2]
[edit] Religion
When the Supreme Court was established in 1789, the first members came from among the ranks of the Founding Fathers and were almost uniformly Protestant. Of the 110 Justices who have been appointed to the court, 91 have been from various Protestant denominations, 11 have been Catholics (one other Justice, Sherman Minton, converted to Catholicism after leaving the Court) and 7 have been Jewish. Three of the 17 Chief Justices have been Catholics, and one Jewish Justice (Abe Fortas) was unsuccessfully nominated to be Chief Justice.
A number of sizable religious groups have had no Justices appointed from their group. These include Mormons, Pentecostals, Muslims, Buddhists and members of the Eastern Orthodox church. Nor has an avowed atheist or agnostic ever been appointed to the Court, although some Justices have been noted as declining to engage in any manner of religious activity.
[edit] Protestant Justices
Most Supreme Court Justices have been from various Protestant denominatations, and these have included 33 Episcopalians, 18 Presbyterians, 9 Unitarians, 5 Methodists, 3 Baptists, and lone representatives of various other denominations. William Rehnquist was the Court's only Lutheran; Noah Swayne was a Quaker. Some 15 Protestant Justices did not adhere to a particular denomination, and at least one, David Davis, was not a member of any church. Notably, the Baptist church and other evangelical churches have been underrepresented on the Court. So-called mainline protestant churches have been overrepresented.
[edit] Roman Catholic Justices
The first Roman Catholic Justice, Roger B. Taney, was appointed Chief Justice in 1836 by Andrew Jackson. The second, Edward Douglass White, was appointed as an Associate Justice in 1894, but also went on to become Chief Justice. Joseph McKenna was appointed in 1898, placing two Catholics on the Court until White's death in 1921.
Other Catholic Justices included Pierce Butler (appointed 1923) and Frank Murphy (appointed 1940). Some accounts note that Sherman Minton, appointed in 1949, was also a Catholic, but he did not join the Catholic faith until 1961 - having already retired from the court in 1956. Minton was succeeded by a Catholic, however, when President Eisenhower appointed William J. Brennan to that seat. Brennan was then the lone Catholic Justice until the appointment of Antonin Scalia in 1986, and Anthony Kennedy in 1988.
Like Sherman Minton, Clarence Thomas was not a Catholic at the time he was appointed to the Court. Thomas, although raised Catholic, had joined the Protestant denomination of his wife after their marriage. At some point in the late 1990s, Thomas returned to Catholicism. In 2005, John Roberts became the third Catholic Chief Justice and the fourth Catholic currently on the Court. Shortly thereafter, Samuel Alito became the fifth on the Court, and the eleventh in the history of the Court. Besides Thomas, at least one other Justice, James F. Byrnes, was raised as a Roman Catholic, but converted to a different branch of Christianity prior to serving on the Court.
[edit] Jewish Justices
In 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah P. Benjamin to be the first Jewish Justice, but Benjamin declined the offer, and ultimately became an officer in the Confederacy during the Civil War. The first Jewish nominee, Louis Brandeis, was appointed in 1916, after a tumultuous hearing process. The 1932 appointment of Benjamin Cardozo raised mild controversy for placing two Jewish justices on the Court at the same time, although the appointment was widely lauded based on Cardozo's qualifications.
Brandeis was succeeded by Protestant William O. Douglas, but Cardozo was succeeded by another Jewish Justice, Felix Frankfurter. Frankfurter was followed by Arthur Goldberg and Abe Fortas, each of whom filled what became known as the "Jewish Seat". After Fortas resigned in 1969, he was replaced by Protestant Harry Blackmun, and no Jewish Justices were appointed until 1993, when Ruth Bader Ginsburg was appointed to replace Byron White. Ginsburg was followed in relatively quick succession by the appointment of Stephen Breyer in 1994 to replace Harry Blackmun.
Negative reaction to the appointment of the early Jewish Justices did not exclusively come from outside the Court. Justice James Clark McReynolds, a blatant anti-semite, refused to speak to Brandeis for three years following the latter's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to Court members on their retirement. During Benjamin Cardozo's swearing in ceremony McReynolds pointedly read a newspaper muttering "another one" and did not attend that of Felix Frankfurter, exclaiming "My God, another Jew on the Court!"
[edit] The Court arrives at a non-Protestant majority
At the time of Breyer's appointment in 1994, there were two Roman Catholic Justices, Antonin Scalia and Anthony Kennedy, and two Jewish Justices, Stephen Breyer and Ruth Bader Ginsburg. When Clarence Thomas, who had been raised as a Roman Catholic but had attended an Episcopal church after his marriage, returned to Catholicism later in the 1990s, Protestant Justices remained a plurality on the Court, but were no longer a majority.
[edit] The Court arrives at a Catholic majority
In 2005, Chief Justice John Roberts became the fourth sitting Catholic Justice, creating the first Catholic plurality on the Court. On January 31, 2006, Samuel Alito became the fifth sitting Catholic Justice.
Catholic Justices now constitute 56% (5 of 9) of the Supreme Court; about 25% of Americans are Catholic. Jewish Justices constitute 22% (2 of 9) of the Court; about 2% of Americans are Jewish. The sole Episcopal Justice represents 11% (1 of 9) of the Court; about 2% of Americans are Episcopalians. The sole Protestant Justice declining to specify a denomination represents 11% (1 of 9) of the Court; about 3% of Americans are Protestants who decline to specify a denomination. Grouping all Protestant denominations together, including Episcopalians, Protestant Justices constitute 22% (2 of 9) of the Court; 52% of Americans are Protestants, overall.
As of April 2008, the last two Democrat-nominated Justices were Jewish, and five of the last six Republican-nominated Justices either were Catholics or have since become Catholic.
In contrast, there has been only one Catholic U.S. President, Democrat John F. Kennedy (unrelated to Justice Kennedy), and there has never been a Jewish president.
[edit] Age
Justices tend to be appointed after having made significant achievements in law or politics, which excludes many young judges from consideration. At the same time, Justices appointed at too advanced an age will likely have short tenures on the Court. The youngest Justice ever appointed was Joseph Story, 32 at the time of his appointment in 1812; the oldest was Horace Lurton, 65 at the time of his appointment in 1909. Story went on to serve for 33 years, while Lurton served only 4.
The youngest justice appointed in recent memory was Clarence Thomas, 43 years old at the time of his appointment. However, the youngest justice currently sitting is Chief Justice Roberts, who turned 53 in January of 2008. The oldest current Justice, John Paul Stevens, turned 88 in April of 2008. The oldest person to have served on the Court was Oliver Wendell Holmes, Jr., who stepped down after turning 90.
The average age of the Court as a whole fluctuates over time with the departure of older Justices and the appointment of younger people to fill their seats. For the current Court, this age is 66; just prior to the death of Chief Justice Rehnquist, the average age was 71.
[edit] Geographic background
For most of the existence of the Court, geographic diversity has been a key concern of presidents in choosing justices to appoint. For example, in appointing Cardozo, President Hoover was as concerned about the controversy over having two New York Justices on the Court as he was about having two Jewish Justices. O'Brien notes that "[f]rom the appointment of John Rutledge from South Carolina in 1789 until the retirement of Hugo Black [from Alabama] in 1971, with the exception of the Reconstruction decade of 1866-1876, there was always a southerner on the bench. Until 1867, the sixth seat was reserved as the 'southern seat.' Until Cardozo's appointment in 1932, the third seat was reserved for New Englanders." O'Brien goes on to note that the westward expansion of the U.S. led to concerns that the western states should be represented on the Court as well, which purportedly prompted William Howard Taft to make his 1910 appointment of Willis Van Devanter of Wyoming.
However, geographic balance has not been raised as a concern since the 1970s, when Nixon unsuccessfully nominated Southerners Clement Haynsworth of South Carolina and G. Harrold Carswell of Georgia, before finally succeeding with the nomination of Harry Blackmun of Minnesota. The current court has a majority from the Northeastern United States, with six justices coming from states to the north and east of Washington, DC. The remaining three justices come from Illinois, California, and Georgia.
There is some dispute, however, in determining which state a Justice may be from. Because many nominees are appointed Judges who live in districts other than their hometown or home state, geographic diversity has become harder to calculate. Chief Justice John Roberts, for example, was born in New York, but moved to Indiana at the age of five, where he grew up. After law school, Roberts worked in Washington D.C. while living in Maryland. Thus, three states may claim that he is a Justice "from" that state.
Despite the efforts to achieve geographic balance, nineteen states have never produced a Supreme Court Justice. Some states have been over-represented (although partly because there were fewer states from which early Justices could be appointed), with New York producing thirteen justices, Ohio producing ten, Massachusetts nine, Virginia eight, six each from Pennsylvania and Tennessee, and five from Kentucky, Maryland, and New Jersey. A handful of Justices were born outside the United States, mostly from among the earliest Justices on the Court. These included James Wilson, born in Fife, Scotland; James Iredell, born in Lewes, England; and William Paterson, born in County Antrim, Ireland. Justice David Josiah Brewer was born farthest from the U.S., in Smyrna, Asia Minor, (now İzmir, Turkey). George Sutherland was born in Buckinghamshire, England. The last foreign-born Justice was Felix Frankfurter, born in Vienna, Austria.
[edit] Economic and educational background
The majority of the Court's work is not momentous consideration of Constitutional provisions, but rather, unglamorous and dry legal arcana, interpreting minutiae of ERISA, RICO and so on. Consequentially, a legal education has become an unofficial prerequisite to appointment on the Supreme Court.
The table below shows which college and law school each Justice graduated from:
By stark contrast, many of the early Justices were appointed before the advent of modern law schools, and rather than attend a formal program, they "read law" - that is, their legal studies took the form of apprenticeships with more experienced attorneys. The first Justice to be appointed who had attended an actual law school was Levi Woodbury, appointed to the Court in 1846. Woodbury had attended Tapping Reeve Law School in Litchfield, Connecticut, the most prestigious law school in the United States in that day, prior to his admission to the bar in 1812. However, Woodbury did not earn a law degree; Woodbury's successor on the Court, Benjamin Curtis, who received his law degree from Harvard Law School in 1832, and was appointed to the Court in 1851, was the first Justice to bear such a credential.
Associate Justice James F. Byrnes, whose short tenure lasted from June 1941 to October 1942, was the last Justice without a law degree to be appointed; however Stanley F. Reed, who served on the Court from 1938 to 1957, was the last sitting Justice from such a background.
In 2008, seven of the nine sitting justices were millionaires, and the remaining two were close to that level of wealth.[3] Historian Howard Zinn, in his book A People's History of the United States, argues that the Justices cannot be neutral between the rich and the poor, as they are almost always from the upper class.[4]
[edit] References
- ^ Joyce Murdoch, Deb Price, Courting Justice: Gay Men and Lesbians V. the Supreme Court (2002) p. 187.
- ^ John Wesley Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (2001) p. 20.
- ^ Justices are well-off, well-traveled, CNN, June 4, 2008.
- ^ Howard Zinn, A People's History of the United States (New York: Perennial, 2003), p.260-261 ISBN 0060528370.
[edit] Sources
- David M. O'Brien, Storm Center, Sixth ed. (W.W. Norton & Co., 2003). ISBN 0-393-97896-6
