A Supreme Fallacy: "Diversity" and the High Court
Civil Rights Practice Group Newsletter - Volume 3, Issue 1, Spring 1999
May 1, 1999Brian W. Jones
So civil-rights advocacy has come to this. In the wake of the recent revelation that less than 4 percent of the clerks employed by the nine current justices of the U.S. Supreme Court have been Hispanic or African-Americans, liberal civil-rights activists have reacted with predictable self-righteous indignation. Many have used the opportunity to criticize the Supreme Court's restrained jurisprudence and to open a new front in the lonely, reargued effort to preserve race-based affirmative action. Rep. Gregory Meeks, for example, has introduced in the House of Representatives HR591, a resolution urging the court to implement recruiting procedures to ensure that diversity is emphasized -- a not-so-veiled invitation to preferential policies, to be sure.
While the critics may be right to suggest some rethinking of the Court's traditional preference for graduates of a few Ivy League law schools—Harvard and Yale supplied 40 percent of the Court's 34 current clerks—the suggestion that the statistics prove the justices' racial bias or insensitivity is based upon faulty assumptions and ultimately is unsupported by the available evidence.
The critics' arguments rest fundamentally upon four flawed premises—some made explicit and others implied by the critics' hyperbole.
First, the critics imply that the current racial composition of the clerkship pool is a function of the Court's doctrinal conservatism. When speaking of the dearth of minority clerks, the liberal critics and their sympathizers in the media frequently invoke the hiring records of conservative members of the court. Moreover, criticism of the Court's hiring practices frequently is accompanied by reference to its restraint and its avowed skepticism of race-based decisionmaking as expressed in recent affirmative-action and voting-rights cases. "See," the critics imply, "these are the people who oppose our view of civil rights—people who don't care about diversity and, worse, who are downright biased." But the argument assumes too much and discloses too little.
The dearth of minority clerks is found not only in the chambers of conservatives like Chief Justice William Rehnquist but also in the chambers of the court's liberals. For example, Justice David Souter, one of the court's most consistently liberal members, has, like Rehnquist, never hired a black clerk in his eight years on the court. Civil rights hero Thurgood Marshall hired no black clerks in his first 10 years on the court. And the late William Brennan, a liberal legend on the court until his retirement in 1990, never hired a black clerk in his 34 years as a justice—apparently eschewing for his own office the racial-preference policies he so vigorously championed for others. In any event, the philosophical disposition of the court's majority has demonstrably less to do with the racial mix of clerks than with the practical needs of the justices and the limited pool from which those clerks are selected.
Which brings us to the critics' second flawed premise. The critics seem to assume the existence of a large pool of qualified and willing minority applicants from which the justices may draw their clerks. However, this assumption, almost by definition, is false. For the record, Supreme Court clerks are an elite bunch. Described to me by one justice as thoroughbreds able to move nimbly from cases involving fine points of criminal or constitutional law to complicated antitrust, tax and bankruptcy matters, clerks generally are selected from the ranks of newly minted lawyers graduating from the top of their elite law school classes, with experience editing legal journals and clerking for judges on the U.S. Court of Appeals. The pool of eligible lawyers of any race, then, naturally is limited. This structural limitation likely affects each of the justices' clerk selections, regardless of the justices' individual ideologies.
That minority law students constitute a disproportionately small share of those in the already-limited pool of applicants available to the justices does indeed beg concern. But that disproportion need not necessarily be attributable to racial bias—nonracial factors ranging from the financial need to earn more than a clerk's salary to poor preparation or lack of access to reliable feeder institutions could explain much of the disproportion. While all the justices might be served well by looking more often to law schools outside the Ivy League, their failure to do so hardly would constitute racial bias or insensitivity.
While all nine justices face a limited applicant pool for clerks, other factors likely serve to further limit the pool of minority applicants available to the Court's more conservative justices. Understandably, the justices tend—with some exceptions—to hire clerks who share their philosophical bent. Clerks, after all, are hired to buttress the justices' opinions with solid research and crisp reasoning. A court dominated by philosophically conservative judges likely will employ a pool of clerks tending toward that disposition.
In this context, many of the Court's most vocal critics are contributing to the very problem they decry. Despite their calls for diversity among the Court's hires, the nation's liberal civil-rights leaders here find themselves hoisted on their own rhetorical petard—demanding diversity in word that they have undermined in fact as the Court has become more conservative. These liberal critics have in fact undermined among young minority lawyers the most essential diversity of all —intellectual diversity. For example, they have responded furiously to the Court's restrained civil-rights jurisprudence in recent years and have savaged those who would dare to agree with the Court's approach.
The justices have in recent years placed limits on court-supervised desegregation plans, limited state and federal governments' ability to make distinctions among citizens on the basis of race and more strictly construed an array of statutes and constitutional provisions, including those dealing with race and discrimination. Those decisions generally are supported by at least a solid block of five justices, including the Court's only black member, Clarence Thomas. In response to the Court's recent record of restraint, liberal civil-rights activists have unleashed a torrent of race-tinged vitriol. For example, the Rev. Jesse Jackson has gone so far as to compare the black-robed justices to white-robed Ku Klux Klansmen.
Thomas, for his principled concurrence in many of the Court's more conservative opinions, has been vilified by mainstream black leaders and media as an Uncle Tom, a race traitor, a self-hater, a handkerchief head and a mindless, opportunistic lackey of venal white conservatives.
Given the civil-rights left's concerted effort to poison the well of conservatism, does it not stand to reason that the pool of minority students seeking to clerk for the justices might perhaps be more limited than it otherwise might be in a world where genuine diversity is appreciated?
The critics' third presumption lies in the assumption that the presence of minority clerks at the Supreme Court in numbers statistically disproportionate to minority enrollment in law schools necessarily implies the justices' racial bias. Meeks expressed as much when he protested the statistics by asserting that the "standard-bearer of justice is discriminating against our people." The statistics standing alone, however, prove no such thing. Without some definitive evidence that the ratio of minority applicants to white applicants is higher substantially than the ratio of minority clerks to white clerks, the percentage of minority clerks means little. A justice can't hire one who has not applied. Nevertheless, the court's critics never ask the question of how many minorities have applied. If the justices are to be faulted for racial bias, shouldn't we first inquire whether minority applicants are rejected with greater frequency than white ones? Absent such facts, the critics' hyperbole smacks of political opportunism.
Finally, and most alarming, the critics suggest that the racial composition of clerks will affect the resolution of the Court's cases. Their implication is that greater racial diversity among clerks presumably will yield a less conservative jurisprudence on the Court. This view underscores the critics' flawed view of the notion of diversity, the role of clerks and the proper role of judges and the courts.
The idea that racial identity lends a unique perspective to individuals, and therefore to the work they do, is nothing new. In 1927, the eminent black American historian Carter Woodson argued forcefully - and erroneously - that "if the story of the Negro is ever told, it must be done by scientifically trained Negroes .... Men of other races cannot function efficiently because they do not think black." Like Woodson, critics of the justices' hiring records seem to believe that minority law clerks as such bring discrete virtues to the work of interpreting the law. In the view of the critics, the Court apparently lacks clerks who think black—or Hispanic or Asian or female, for that matter. Or at least, they argue, the dearth of minority clerks creates in the public mind an impression that the Court lacks such personnel. Accordingly, we are told, the Court's very credibility lies at stake.
But the racial composition of the Court in recent years provides a lesson for those who would suggest that minorities and women provide a distinct perspective to the Court's jurisprudence. The two women on the Court—Sandra Day O'Connor and Ruth Bader Ginsburg—like the two African-Americans who have served on the court—the late Thurgood Marshall and Clarence Thomas—present nearly diametrical visions of jurisprudence. Each of them presumably decides cases in a manner consistent with his or her vision of the law and the proper role of judges.
So this court indeed is diverse—the philosophical distance between Antonin Scalia and David Souter is great. Presumably too is the distance between the clerks who serve those justices' interests in the shadow of obscurity.
The suggestion that the race of clerks or judges impacts the interpretation of law does more to undermine perceptions of the courts than any ostensible underrepresentation of this group or that. The Framers of our Constitution decidedly rejected the view that the judiciary is a representative institution designed to respond to discrete political constituencies. The interpretation of our nation's laws requires only intellectual rigor, and honesty and philosophical and logical clarity. Harumphing about the racial composition of clerks, then, seems fundamentally to miss the point of justice.
Brian W. Jones, a San Francisco labor and employment attorney, is a director of the Center for New Black Leadership, and has served as deputy legal counsel to Calif. Gov. Pete Wilson and counsel to the U.S. Senate Committee on the Judiciary. He edits the Civil Rights Practice Group newsletter.
Reprinted with permission of Insight. Copyright 1996 New World Communications, Inc. All rights reserved.