WASHINGTON — What sort of person would Justice Antonin Scalia have wanted President Barack Obama to name as his successor? We know more than you might think.
In a largely overlooked passage in his dissent from the court’s decision in June establishing a constitutional right to same-sex marriage, he left detailed suggestions.
Avoid “tall-building lawyers,” especially ones who work in skyscrapers in New York. Find someone who did not go to law school at Harvard or Yale. Look for a candidate from the Southwest. Consider an evangelical Christian.
Scalia was criticizing the lack of diversity of the court he sat on, and he did not exclude himself. He was right as a factual matter: Supreme Court justices these days are by many measures remarkably similar, giving the court the insular quality of a private club or a faculty lounge.
The same-sex marriage decision, he said, underscored the obligation of the president to diversify the Supreme Court.
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine,” Scalia wrote, “is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
To be sure, the court is by some standards reasonably diverse. For the first time it has three women, one of whom is Hispanic. It has an African-American member, only the second in its history.
On the other hand, Scalia wrote, the court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Scalia attended Harvard, as did five other current members of the court. The other three went to Yale.
There is one asterisk, Justice Elena Kagan joked in 2012. “Justice Ginsburg spent one year at Columbia,” said Kagan, a former dean of Harvard Law School. “You know, slumming it.” (Justice Ruth Bader Ginsburg spent two years at Harvard Law School but then moved to New York with her husband and earned her law degree from Columbia.)
Since Justice John Paul Stevens retired in 2010, the court, for the first time, has no Protestant member. Scalia was Catholic, as are five other justices on the current court. The other three are Jewish.
In general, Scalia seemed suspicious of elite legal opinion, suggesting that it reliably espoused liberal orthodoxies. “The predominant attitude of tall-building lawyers with respect to the questions presented in these cases,” he wrote, referring to the same-sex marriage cases before the court, “is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners.”
There are other ways in which the current court may be out of touch with ordinary lawyers, to say nothing of ordinary Americans.
Three of the current justices are former Supreme Court law clerks. Only one has served as a trial judge, and none has served on a state court. Not one has run for public office.
All of the justices but one are former federal appeals court judges. With one exception, those eight served on what might be called the court of appeals for the Acela Circuit, in Boston, New York, Philadelphia and Washington.
Scalia wrote in the June dissent that he wished various kinds of diversity did not matter in judicial appointments. “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant,” he wrote.