Just like the emotional terrorist he is, Donald Trump held the nation hostage with anxiety for nearly two weeks before finally announcing that Brett Kavanaugh was his nominee to replace Supreme Court Justice Anthony Kennedy. Of course, the nightmare is far from over for Democrats, who are preparing for a long fight to keep Kavanaugh from being confirmed. Kavanaugh just may be the golden ticket for those Republicans who want to overturn Roe v. Wade. In addition, he believes that a sitting president can’t be criminally indicted under the Constitution. So, he offers two things that Trump really, really cares about: criminalizing abortion and making sure that he does not go to jail for colluding with Russia in the 2016 election.
Democrats around the country and civil and reproductive rights advocates wasted no time in going right to the American people to explain why Kavanaugh is the wrong pick for this job. They are right to call his record into question—as this court will continue to weigh in on some of the most important social issues of our time. Voting rights, LGBTQ protections, same-sex marriage, affirmative action, workers’ rights, access to reproductive health care and assault weapon bans are all at stake. And Trump’s pick poses a problem not only because he is a conservative who routinely sides against social justice. It’s also because he is yet another straight, white male who will be making decisions that impact an increasingly racially, ethnically, and culturally diverse country for a generation.
Now, someone, somewhere will surely take issue with the above point and with what sounds like the labeling of all white men. We can argue endlessly about the various kinds of diverse experience and perspectives that a straight, white male might bring to the Supreme Court. But as a recent CNN article points out, there’s an important and hard truth that is worth reflecting on in the discussion about the makeup of the court. Out of all the 113 Supreme Court justices in our country’s history, all but six have been white men. This matters. Now because Americans have an unrealistic and childlike attitude toward race, we can predict with certainty that some will say that this is unimportant. They will say that the country is post-racial and has even already had a black president—so if the most qualified candidates for the Supreme Court are all white men, so be it. But, as wise Latina Justice Sonia Sotomayor has often said, a person’s experiences and identity influence how they see and understand the world.
Sotomayor’s comments about her own identity and the diversity of thought and experience that she brings to the court have often been seen as controversial—mainly by the same individuals who try to sell us on the above notions of racial colorblindness and the idea that all people in America have equal chances. They are misguided. And with respect to the judiciary, Sotomayor’s point has merit. What she alludes to is that diverse and complex-lived experiences and knowledge can help judges to understand nuances that go beyond black and white. Of course, we must recognize the ambiguity in this idea. Diversity takes many forms. And a judge need not have been an actual victim of racial profiling or sexual harassment or homophobia, for instance, to understand their impact and know that they are against the law. But like any human being, judges, and certainly Supreme Court justices, are not immune to their own bias and often see and reflect the world through their own lived experiences. This becomes a problem when they see and experience the world through very narrow lenses.
In 2013, SCOTUS voted 5-4 to gut key provisions in the Voting Rights Act that require local and state governments to get approval before changing their voting laws. Unsurprisingly, the three female justices (Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) were all against doing away with parts of the act and dissented. It was Chief John Roberts who delivered the majority opinion. Roberts, a skeptic who believed that these rules had “outlived their usefulness,” said that times had changed. According to the New York Times guide to the opinion, Roberts’s rationale was the following:
[The] formulas that govern singling out one state from another for different treatment, which once "made sense," have lost their relevance, and "nearly 50 years later, things have changed dramatically."
Roberts is dead wrong. Born in New York State, raised in Indiana and educated in elite, Ivy League institutions in the Northeast, Roberts knows next to nothing about the American South nor does he know what it’s like to be a person of color trying to vote in the United States. Fifty-three years after the Voting Rights Act, it is still difficult and sometimes near impossible for black and brown people, particularly in the South, to vote. Not only do we have the qualitative and quantitative data to prove it, we are also in the midst of very transparent efforts by Republicans to pass restrictive voter ID laws across the country to prevent voter turnout. This is exacerbated by a president who consistently tells the American public that millions of ineligible people are engaging in voter fraud—which, he suggests, is the reason that he lost the popular vote by more than 3 million. He came up with a bogus commission on electoral integrity to try to sell that story, which was dissolved after less than a year because it was, in his own words, “fake news.”
But the false notion of voter fraud hasn’t stopped Republicans from attempting to and succeeding in disenfranchising voters of color and making sure that they win seats in perpetuity. They’ve so successfully gerrymandered districts in states like Wisconsin, Maryland, and Pennsylvania that they can safely secure seats in Congress and state and local legislatures with less votes. Recently, these cases have been brought to SCOTUS. The court has not only upheld states’ rights to gerrymander, it’s also upheld the ruling that states can purge their voter rolls. About this, The Washington Post said, “Unfortunately, the high court continues to step away from creative solutions to systemic problems.”
The ability to come up with creative solutions, requires seeing these as problems to begin with. Roberts doesn’t see these as problems. Why would he? Private-school educated, working in private law practices, palling around with the Reagan and Bush administrations—it is likely that Roberts’s world has almost always been filled with rich, privileged white males. Rich, privileged white males aren’t worried about their ability to vote because it’s guaranteed. If anything, they are the ones taking away the right to vote from others. They live in a bubble. To say with such certainty that the country has profoundly changed, while serving on a majority white male court that has almost always been white and male, is to be steeped in privilege and completely disconnected from the reality that millions of Americans are facing everyday. Voting rights will continue to be an issue for the court in the coming decade. And it’s hard to have faith that they will be protected by a group of mainly white male justices that don’t understand the American electorate or the American people—especially given that they don’t see the need for them to be protected in the first place.
Businesses, organizations, and corporations around the country are coming to terms with the idea that diversity in the workplace is important—not just for diversity’s sake but because of the tremendous benefits it brings. Not only is diversity good for the business bottom line (customer loyalty, profits, etc.) but it also leads to greater employee satisfaction, innovation and creativity. Diverse teams are often able to tap into their varying perspectives, skills and experiences to do creative problem solving. SCOTUS needs more diversity, not less. In fact, in 2016, Sotomayor advocated for this very thing. As CNN notes, she believes more diversity would be a good thing for the court.
"A different perspective can permit you to more fully understand the arguments that are before you and help you articulate your position in a way that everyone will understand," she said.
Sotomayor doesn’t suggest that her white, male colleagues are incapable of understanding the arguments made before the court. Indeed, all of them have impressive credentials and experience—even if their views pose a credible threat to many of the rights that marginalized people are most concerned about. But, if they only hear perspectives that echo their own understanding and beliefs, they and other white males appointed to the court will likely continue to do more harm than good. The lack of diversity on the court only maximizes the impact of their decisions on the most vulnerable in our society. In other words, white, conservative men continuing to weigh in on vitally important (and sometimes life and death) legal decisions while only talking to other mostly white conservative men is problematic—especially as the nation is growing browner and more female by the day.
Donald Trump’s pick for the Supreme Court, like his entire presidency, is taking us backward instead of forward. Under Barack Obama, we got closer to a SCOTUS that more accurately represented the diversity of America. We need that diversity so we can have a fair chance of legal protections for all people in the country and especially those most at risk. As the court continues to hear cases on diverse topics and issues, a wide variety of perspectives is needed now more than ever. Besides, its 2018. Appointing yet another white man isn’t novel. It’s repeating the status quo. And that’s what Trump and his supporters count on, especially since they want an America that is overwhelmingly white. But things are changing. And a diverse Supreme Court is long overdue.