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The U.S. Supreme Court’s long road to embracing diversity

If You Ask Me

Three weeks before the 1980 presidential election, Republican Ronald Reagan promised to make history by appointing the first female justice of the U.S. Supreme Court.

President Jimmy Carter, his opponent, said it was a terrible mistake to promise to appoint any particular kind of American, thereby denying consideration to all those other highly qualified people. Republicans thought it was a swell idea.

Forty years later, Democrat Joe Biden promised to make history by appointing the first Black female justice to the Court. Republicans thought it was awful to intentionally deny all those other highly qualified people — white men and women, Black men, etc., etc. — consideration. Democrats thought it was a swell idea.

It’s remarkable how our two, not so great political parties can alter strongly held views with changing times or changing power.

Like most things governmental, the question of the Court’s makeup started with George Washington. The Father of Our Country worried about individual states having undue influence on the Court and decided he should limit appointments to one justice per state. This wasn’t easy because there were only 13 states for a while and once you got past Virginia, Massachusetts and maybe Pennsylvania, there wasn’t an unlimited supply of highly qualified white, male Protestant types around.

Abigail Adams, the before-her-time spouse of Founding Father John, memorably exhorted her husband and his fellow founders to “remember the ladies” while forming the new nation but the other guys figured that was just the 18th century equivalent of pillow talk and wondered why Adams couldn’t control Abigail.

With women not permitted to vote in the 18th, 19th and first decades if the 20th centuries, their ascension to the highest court in the land or, for that matter, the lowest, was never an issue. We didn’t have a female justice until women had been voting for nearly 60 years but things have been a bit better in recent years with as many as three women on the court at the same time.

Harry Truman is the first president I was able to find who seriously thought about naming a woman to the Supreme Court but he was talked out of it by some of his old buddies on the Court. They told Harry a woman’s presence would severely limit the delightfully informal — or bawdy — nature of the justices’ man to man deliberations.

During all the years of same sex justices, the Court did look like the rest of American men — except for men who weren’t white, Protestant Nordics.

President Andrew Jackson did make an exception in 1836 when he made Roman Catholic Roger Taney a justice but don’t give Old Hickory praise for striking a blow for religious freedom. Taney was strictly a crony, a loyalist who had served in three posts in the Jackson cabinet.

Taney did become a long serving chief justice, remembered for some important decisions but mainly for the Dred Scott case in which a slave had sought freedom because his owner had moved him into several states where slavery was illegal. The Court’s 7-2 decision, written by Taney, ruled Scott, like all other slaves, did not enjoy any American citizenship rights and privileges.

The decision contributed to the coming Civil War and one legal scholar, Bernard Schwartz, believes it “stands first in any list of the worst Supreme Court decisions.”

His Catholicism never appeared to be an issue. However, Taney left the Court in 1864: There wouldn’t be another Catholic appointee until the 1890s and a grand total of just six of the 101 men on the Court until O’Connor came along in 1980.

 

Since then, Catholics have been popular appointees for both Democratic and Republican presidents, but especially Republicans.

Jewish justices have been scarcer. The first Jew on the high court was a highly celebrated legal scholar, Louis Brandeis, appointed by Woodrow Wilson in 1916 over strong opposition.   

For nearly a century, there was rarely more than one Jew on the court at any time but recently, before the death of Ruth Bader Ginsberg, there were three:  Ginsberg, Stephen Breyer and Elena Kagan.

Ethnic minorities have fared even worse in the pursuit of a Court that looks like America.  Sonia Sotomayor is the only Hispanic/Latina ever appointed to the Court unless you count Benjamin Cardozo, a Sephardic Jew whose people can be traced to Portugal.

 

Until Antonin Scalia joined the Court in 1986, there were no Italian-Americans; the current Justice Samuel Alito is only the second. There have been no justices of Slavic or other eastern European heritage and no members of religions other than Protestants, Catholics and Jews.

Which brings us to today, or, more accurately, to the day after tomorrow when Stephen Breyer steps down and is succeeded by Ketanji Brown Jackson.

On that day, the Court will have an extraordinary seven justices who were or are Catholic.  (Justice Gorsuch was born and raised Catholic but currently attends an Episcopal Church without specifying his religion and Clarence Thomas was born and raised Catholic, became an Episcopalian, then became a Catholic again.  Justices Roberts, Alito, Kavanaugh, Barrett and Sotomayor are lifelong Catholics.  Justice Kagan is currently the only Jew.)

That leaves the brand new Justice Jackson with a second distinction.  She is not only the first and only Black female justice. The nondenominational Protestant Jackson is the only avowed Protestant left on that formerly all male, all Protestant Supreme Court of the United States.

 

Simsbury resident Dick Ahles is a retired journalist. Email him at rahles1@outlook.com.

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