excerpted from: Meagan M. Rafferty, Diversifying the Law Through an All-Minority Bench, 4 Savannah Law Review 189 (2017) (209 Footnotes) (Full Article)
Our minorities alone are in a position to know what the fathers of our democracy were talking about.
Balance: verb. To equalize in number, force, or effect; to bring into proportion.
In his confirmation hearing before the Senate, now Chief Justice Roberts famously analogized the job of a Supreme Court Justice to an umpire who calls "balls and strikes." Conversely, Justice Sotomayor spent much of her confirmation hearing having to defend a lecture she gave several years earlier discussing how she brought her "wise Latina" perspective into her judging. Both examples reflect the common belief that judges are, or should be, "neutral" when they interpret laws. What this common belief masks is that neutrality is a myth. Judges are human and, as cognitive learning theory demonstrates, humans learn and make decisions based on previously acquired knowledge, learned from their unique life experiences. Empathy will fill many of the gaps between the lived-experiences of the judge and those of the parties before her, but it can only go so far. In order to empathize with a party's lived experience, a judge must first recognize that the party's lived experience differs from her own. Even the most empathetic judge will not be able to identify with an individual if she does not recognize that differences exist.
Since the founding of this great nation, and since the creation of the Supreme Court with Article III of the Constitution, 113 Justices have sat on its bench. Of those 113 Justices, 107 have been white, ostensibly straight men. To put that in perspective, if you were to add the time each justice served on the Supreme Court, white, straight men have served for 1763 years. That is one and three-quarters millennia of service crammed into the roughly two and one-third centuries since the Founding. If you add in the time straight men of color have served--a mere 48 years--men have served on the Supreme Court for 1811 years. In that same time, women have served for fifty-eight years--straight white women for fifty-two years, and a straight Latina woman for six years. White justices have spent 1815 years on the Supreme Court, compared to the fifty-eight years for which racial minority justices have served on the bench. Women and men of color have given the Supreme Court 106 total years of service, which is one-seventeenth of the 1763 years that white men have served. Straight justices have served on our Supreme Court for 1869 years, while sexual minority justices have never served.
Now imagine, instead, a Supreme Court consisting entirely of lesbian and bisexual women of color. Putting aside any questions of political feasibility or issues related to their appointment or confirmation, we can assume for these purposes that all of these justices are well qualified, have been vetted, and were appointed and confirmed according to constitutional requirements. Would this compilation of the Court present any problems? For whom? And why? After all, justices are supposed to be neutral arbiters. These nine highly qualified justices would fulfill their duty and oath to uphold the Constitution, and in so doing, would merely apply the facts of the case before them to the law.
The trouble with this system--or perhaps the beauty of it, depending on one's perspective--is that judges and justices are human. Each justice's lived experience will color her perspective and the way she views the facts of every case. She cannot divorce her worldview from her judgments. Empathy can help a justice to understand the difference between her own lived experiences and those of the parties before her, but will only bridge certain gaps. Where neither the justice nor the parties before her recognize or see the difference in their respective lived experiences, empathy will not help a justice see the limits of her own worldview. Empathy cannot bridge a gap neither party knows exists.
Because of this limitation on the helpfulness of empathy, the Supreme Court needs justices who are more likely to share or understand the lived experiences of the parties before the Court. To date, the justices serving on the Court have overwhelmingly come from one demographic group. The Court, thus, needs to dramatically increase its diversity to widen its perspective. Adding racial, gender, and sexual minorities to the bench will exponentially increase the likelihood that at least one justice will share or understand the lived experiences of the parties before the Court. Even when a justice, herself, does not share the lived experiences of parties before the Court, increasing the commonalities between the justice and the parties--including race, gender, and sexuality-- increases the likelihood that the justice will understand the parties' experiences and see how they differ from her own. Once a justice recognizes the gap in lived experiences between herself and the parties before her, empathy can bridge the gap.
Turning back to the imagined Court with nine lesbian and bisexual women justices of color, now imagine a white, straight man whose case is before this Court. Imagine that he has no doubts as to their qualifications, and has great respect for the justices. He knows that each Justice has taken an oath to uphold that Constitution, and he trusts that they will do so in good faith. He has every reason to believe that these Justices are free from outside influences, and that they have no stake in the outcome of the case beyond their sense of duty to get it right. Still, he is uncomfortable. He worries that these Justices--nine lesbian and bisexual women of color, wearing black robes and sitting all in a row--have nothing in common with him. He worries they may not be able to see his perspective or understand his worldview. These Justices, he fears, may not have experienced, or even be able to imagine or empathize with, the circumstances in his case or leading up to it. Compounding this white, straight man's worries is the fact that the opposing party in his case is also a lesbian woman of color. So, he thinks, not only will these Justices struggle to identify with his perspective, not only will they have trouble imagining his experiences leading up to his case, but they also will easily identify with his opponent. They will have no trouble, he fears, understanding the perspective and experiences of his opposing party.
He may be right. Still, the white, straight man can take some amount of comfort in knowing that his perspective is still represented, despite the demography of the current Court. After all, the current Justices still owe deference to precedent--a precedent established by an overwhelmingly white, straight, male judiciary of the past--through stare decisis. In addition, the Court is often interpreting statutes created by an overwhelmingly white, straight, male Congress or state legislature. The Court will owe deference to Congress and state legislatures, though to varying degrees, depending on the issue presented in the case. Also, with the exception of the very rare instances in which the Supreme Court has and exercises original jurisdiction, the lower courts--whose judges are also still overwhelmingly white, straight, and male already have made factual and legal determinations. Even when the Supreme Court reviews a case de novo, it still owes deference to the lower court's factual determinations. Accordingly, even if the Justices presently sitting on the Court do not share the white, straight, male perspective, the deference the Court owes to precedent, legislatures, and lower courts serves to ensure the white, straight, male perspective is represented in the Court's decisions.
Given the demography of the Supreme Court throughout its history, straight, white men have decided nearly every case, and answered nearly every constitutional question in our nation's history. White, straight men, almost exclusively, have created the precedent to which our current and future justices owe deference. Because of the nature of stare decisis, as well as the demography of the legislatures and the lower courts, combined with the importance one's own lived experience plays in her decision-making and ability to empathize, the Court should not aim to ensure neutrality from each individual justice--which is impossibly untenable--but rather to achieve a genuine and enduring balance of perspectives among the collective justices. This Note imagines a fundamental shift in the demography of the Bench from one extreme to the other--a Supreme Court consisting entirely of justices belonging to racial, gender, and sexual minorities. A dramatic, polar shift initially may be the best way to make up for the unimaginably disparate minority representation on the Highest Court. Perhaps once the Court shifts to consist of nine minority Justices, it will eventually achieve a balance such that it adequately represents the varying perspectives of the populace. Once this shift achieves a balance of perspectives, the demography of the Court can then partially shift back, such that the demography of the Supreme Court mirrors that of the populace.