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How Supreme Court Justices Do (and Don’t) Represent America

How Supreme Court Justices Do (and Don’t) Represent America

Last updated on: February 4, 2022 at 12:22 am by Philip Jenkins

How Supreme Court Justices Do (and Don’t) Represent America 2022-02-03T20:54:30-04:00 Philip Jenkins

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In the coming months, we are going to be hearing a great deal about the next appointment of a Justice to the US Supreme Court. Some of that discussion revolves around just how representative the Justices should be, in reflecting the makeup and diversity of the larger population. In practical terms, what does it mean to say that the Court, and its nominees, should “look like America”? These are some thoughts about how principles of representation and inclusion might work in ethnic and racial terms, or to put it simply, why I think our next Justice choice really should be Latino/a.

And oh my, the issue of being representative religiously also cries out.

A Justice of Their Own?

Representation is a shaky concept. Everyone likely agrees that some factors matter a great deal – sex, race, ethnicity – while others don’t. To take a ridiculous example, nobody thinks that candidates should reflect the average height or weight that we find in the population as a whole. Less ridiculous, few ever cite the class background of candidates, the socio-economic status from which they started their careers. Maybe we should look for more representation and diversity in that regard.

Nobody is arguing for a perfect representation in every category. We presently have nine Justices, and that number is likely to remain in place at least for a few years to come. If you want to be compulsively technical about this, then any group should constitute eleven percent of the population before they qualified for “a Justice of their own.” If we had applied that standard historically, we would never have had a Jewish Justice, as Jews comprise only around two percent of Americans. We would thus have deprived ourselves of a lot of the most admired and talented Justices who ever served. You can make an excellent case that issues of representativeness should be ignored in favor of choosing the best person for the job, however that quality is defined.

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Even if we think that representation should play some role in selection, that is only one factor among many. But for the sake of argument, let’s pursue that point here.

Some of the representation issues are obvious. Half of Americans are female, so any Court should in theory be either 5/4 or 4/5 by sex. Presently, there are only three women to six men. There is a virtual certainty that this situation will change this year, to a 4/5.

Race and Ethnicity?

If we did apply that “one in nine” standard to race and ethnicity, that would produce some results that many people would find counter-intuitive. Presently, as viewed before the resignation of Stephen Breyer, the composition of the Court, in crude terms, is seven Whites, one Black, and one Latina. Surprisingly, perhaps, in racial and ethnic terms, the present Court does a pretty good job of reflecting national realities – not perfect, but not as bad as it might initially seem.

As repeated surveys show, a great many ordinary people have a very poor idea of the racial and ethnic balance of the US as it stands today. To take the issue of race, the proportion of Americans who identify as White stands at 76.3 percent. Applying that to the Supreme Court would mean that seven of nine Justice should normally be White. Blacks and African Americans stand at 13.4 percent, which means one Justice. Technically it should be 1.2 Black Justices, but that poses problems.

Matters are complicated by the fact that “Hispanic/Latino” is not regarded as a racial category, so Hispanics can be either White or Black. Presently, the number of Americans who report being “White alone” is 76.3 percent. The number who are “White alone, not Hispanic or Latino” is 60.1 percent. Putting those two statistics together, 16.2 percent of the population are Latino/Hispanic people who report being White alone. That is one American in six.

Our hypothetically perfectly representative Court should be composed of five or six non-Latino Whites; one or two Hispanic Whites; and one Black. That would (maybe) leave just one Justice position to satisfy the aspirations of all the other categories – Asians, Native Americans, and Hispanics who do not identify as White. Again ideally, two Justices in total should claim a Latino heritage.

Currently, White and Black numbers on the Court are close to what we would expect from the overall structure of the population. The glaring shortage has been the lack of another Latino/Hispanic Justice, to replace one of the non-Hispanic Whites. The fact we don’t seem to regard this as a pressing issue reflects the general lack of attention paid to Hispanic and Asian populations in the larger ethnic makeup. Americans have been agonizingly slow to get away from that old stereotype of a nation that is majority White and minority Black, with only marginal other components inbetween. As a statistical concept, that really has not been true since the 1960s. That ignorance is a crying political problem, and a media one. Are not Latinos a historically under-represented population?

All those numbers are of course in flux, with the growth of those Hispanic and Asian populations: the two groups combined will account for more than a third of all Americans by 2050. But in racial terms, the pace of change is nothing like as dramatic as many imagine, because so any of those Hispanics, and (crucially) of mixed-race people, identify as White. Projections of a “majority-minority” nation in the near future commonly make that mistake, of confusing “White” as a racial label with “non-Hispanic White.” (Mea culpa: I have occasionally myself made this error in the past, or at least failed to stress the distinction as clearly as I should). In reality, the very diverse America of 2050 probably w0n’t be massively less “White” than it is today.

For that reason, an “ideal” representative Supreme Court by 2050 would still have a White majority, but with at least a couple more spaces for Latino or Asian Justices. That would imply three Justices of Asian and/or Latino heritage. The Black proportion of the population would increase very slightly, to perhaps 15 percent, but that would still mean one Justice. Again, all those statements assume that representativeness matters, which it may or may not. It’s a value judgment.

Religion?

But if the present Court is fairly representative ethnically and racially, the religious picture is wildly distorted. That may or may not matter, but it is a striking fact, and a baffling one. Briefly, the Justices are far more religious in outlook than the mainstream population, and – to be precise – far more Catholic.

Although the evidence for religious outlook is nothing like as reliable as the figures for race and ethnicity, the number of Americans who identify as Christian is around 70 percent. The largest categories include Roman Catholics (22 percent), White mainline Protestants (16 percent), and white evangelicals (14 percent). If we combine evangelicals of all races and ethnicities, then the total figure for that category should be a bit over 20 percent. Only five percent of Americans follow a non-Christian faith. Almost a quarter of all Americans define themselves as Nones, with no admitted religious affiliation, and that number is growing rapidly. I say again, almost a quarter.

Let’s translate that into numbers of Supreme Court Justices, assuming that our goal is total representativeness. An ideal Court (in this quantitative sense) would include two Catholics, two evangelicals, two Mainliners – and at least two Nones. One other Justice, whether a Christian or a Jew, might represent all other groups together.

The actual numbers are radically different. Again taking the situation before Breyer’s resignation, the actual Court included six Catholics, a figure that does not include Neil Gorsuch, who is sometimes listed as Catholic, but appears to be a practicing Episcopalian. There are, or were, two Jews. Apart from Gorsuch, the number of Protestants of any shade of belief – including evangelicals or Mainliners – was a stunning zero. Not for decades has there been any representation whatever from such obscure sects as Baptists, Methodists, Lutherans, or Presbyterians. And God forbid there should ever be a Pentecostal.

We can argue at length about what that Catholic dominance means. Of itself, the religious label says precisely nothing about one’s place on the political spectrum: there are very liberal Catholics, and very conservative ones. But the gap with the patterns in the general population is notable. To take just one issue, just where are those None-ly Justices?

So if we are projecting the future demography of the Court, I do offer one secure prediction. Get ready for more candidates who flat out refuse to claim even a notional religious label, or who would be even more forthright and declare that the issue had never really occurred to them. Politically, are we ready for Justices who are openly atheist? Those particular Senate hearings are going to go into religious territory very different from anything we have experienced in the past.

Philip Jenkins

US Supreme Court

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