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Friday, December 3, 2021

SCOTUS has history of not seeing people of color

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The Supreme Court of the United States (SCOTUS) was established in 1789; it was first convened in 1790. It has welcomed 114 justices in the ensuing 230 years. Only three of them have been people of color: Thurgood Marshall, Clarence Thomas and Sonia Sotomayor. Further, only three women other than Justice Sotomayor have served: Sandra Day O’Connor, Ruth Bader Ginsburg and Elena Kagan. Clearly, the number of people of color who have served on SCOTUS is anemic — and that’s not the only bad news.

SCOTUS also has an exceedingly poor track record regarding racial diversity among its law clerks. The justices who (ostensibly) represent all of America rarely select people of color to serve in that highly-coveted capacity. Importantly, this fact is not limited to “conservative” justices; “liberal” justices overwhelmingly select white law clerks as well. For example, the highly celebrated Justice Ruth Bader Ginsburg, who has served since 1993, has hired only one African-American clerk. Further, just 12 percent of her clerks since 2005 have been people of color — the same percentage as those of Justice Clarence Thomas. By contrast, 50 percent of Justice Ginsburg’s clerks have been women.

It’s likely that most people would be surprised to learn that 43 percent of the clerks (i.e., three of seven) who Justice Neil Gorsuch has hired have been people of color. (President Trump nominated Gorsuch in 2017.) Among them is Tobi Merritt, who is thought to be the first “enrolled citizen” of a Native American tribe to become a SCOTUS clerk. Also, about 30 percent of Justice Sonia Sotomayor’s clerks have been people of color. (Sotomayor, a nominee of President Obama, has been on the Court since 2009.)

According to the National Law Journal (NLJ), since 2005, “Eighty-five percent of all clerks were white; only 20 of the 487 hired were Black, and nine were Hispanic. Asian-Americans are the best-represented racial minority on the court; nine percent of clerks hired since 2005 are of Asian descent.” Additionally, men outnumber women two-to-one, despite the fact that more than half of all law students are female as of 2017. Currently, there are 36 clerks, including three Asian-Americans, two Hispanics, and one African-American.

Part of the reason for the lack of racial diversity is that the justices tend to hire clerks from only two law schools – Harvard and Yale – both of which lack substantial racial diversity. According to the NLJ, these two schools account for half of all Supreme Court clerks. This is an increase from 1998, when these schools accounted for a mere 40 percent of all clerks.  

Why should anyone care about this? The answer is two-fold. First, clerks often go on to become federal judges — including Supreme Court justices. (Four current justices were clerks, as were three current senators.) Other former clerks join the nation’s top law firms, become professors at top law schools or assume roles in major corporations. (The lead attorneys at both Facebook and Apple were former SCOTUS clerks.) 

Being a SCOTUS clerk is also important because they help shape the Court’s decisions. While the justices themselves decide the cases that come before them, clerks conduct research, review opinions and perform other duties that affect the outcome of said cases. The clerks’ background informs how they view the world; in turn, those views inform their approach to the law. In short, the institution that rendered the Brown decision also rendered Plessy v. Ferguson and Dred Scott. Thus, even as we should push for greater racial and gender diversity on the Court itself, it is important to do so vis-à-vis the people who support the justices. 

Finally, SCOTUS is essentially accountable only to itself. Indeed, Samuel Chase is the only Supreme Court justice ever to have been impeached. (This took place in 1804; he was acquitted in 1805.) Our justice system is supposed to be (color?) “blind.” Clearly, when it comes to racial diversity, it’s time for the Supreme Court to drop the scales from its proverbial eyes. 

 

Larry Smith is managing director of Randall L. Tobias Center for Leadership Excellence at Indiana University. Contact him at larry@leaf-llc.com.

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