How greater diversity has affected the US Supreme Court’s evolution in recent decades

Throughout much of its history, the U.S. Supreme Court was dominated by White males — especially non-Catholic, non-Jewish White Anglo Saxon Protestant males. But in recent decades, the High Court has become more diverse — and President Joe Biden has promised that his nominee to replace the retiring Justice Stephen G. Breyer will be an African-American woman. Journalist Amber Phillips discusses that diversity’s effect on the Court in a think piece published by the Washington Post on February 11.

“A number of Senate Republicans have pushed back against Biden’s promise specifically to add a Black woman to the Court, saying she would simply be a beneficiary of affirmative action rather than chosen because of her qualifications,” Phillips observes. “But only modern presidents have placed a premium on racial and gender diversity when nominating lifelong appointees to the Supreme Court — a stark reality visible in the Court’s class photos. The result is that the interpretations of Americans’ rights — for instance, the right to have a lawyer, the right to abortion, protection against gender-based discrimination — have been made almost exclusively by White men.”

The late Thurgood Marshall became the Supreme Court’s first Black justice after President Lyndon B. Johnson nominated him in 1967. And in 1981, President Ronald Reagan nominated the Court’s first female justice: Sandra Day O’Connor.

President Barack Obama nominated a Latina, Justice Sonia Sotomayor, in 2009. And President Bill Clinton nominated a Jewish woman, Justice Ruth Bader Ginsburg, in 1993.

“Diversity has trickled into the Court in modern times, and there are indications that it has made a difference, such as when the Court allowed a state to ban Confederate flag license plates and cross burning, rejecting free-speech arguments,” Phillips explains. “Sometimes, the impact of diversity rippled out from a fiery dissent by a justice that animated minority groups and helped drive a political conversation.”

Phillips notes how the High Court voted in the 2015 case Walker v. Texas Division, Sons of Confederate Veterans.

“In 2015, the Court was as diverse as it has ever been: a Black justice, a Hispanic justice, and three women,” Phillips recalls. “That Court considered whether Texas could ban Confederate flags on its license plates. Thomas sided with the Court’s four liberals — a rare move for him, given that he usually sided with conservatives, including in rejecting most affirmative-action laws — to make the deciding vote that Texas did not have to allow the flags on license plates.”