The ruling class and the Supreme Court

As President Biden is poised to deliver on his campaign promise to nominate a Black woman jurist to the United States Supreme Court, a predictable chorus of naysayers, intent on waging a narrow and ahistorical campaign against identity politics, has taken to the airwaves and editorial pages to protest. These criticisms largely ignore the fact that the United States Supreme Court has and continues to be dominated by a ruling class of justices who share very little in life experience with the American people most significantly impacted by their decisions. 

The problem certainly doesn’t begin and end with the court’s racial composition, but it is obvious the disparities here are stark. In the history of the Supreme Court, 115 individuals have served as justices — 108 of these have been white males. This longstanding pattern has so altered our collective consciousness regarding what a justice should be that concerns over identity politics surface only when the nominee is not a white male — an unconscious bias acquired throughout a long history of societal racism and sexism. 

Regarding many other aspects of identity, most notably socioeconomic background, there also exists a dangerous blind spot. Take all the criticism leveled against Biden’s expressed choice to nominate a Black woman — where were those same voices when former President Trump nominated two justices, Neil Gorsuch and Brett Kavanaugh, both graduates of the same elite Georgetown Preparatory School? There are 23,882 public high schools and 2,845 private high schools in the United States — it is difficult to argue we live in a meritocratic society when two out of nine sitting Supreme Court justices are graduates of the same exclusive private high school. President Trump’s nominations appeared also to draw from a predetermined demographic group, consisting of the scions of well-connected Washington insiders, yet that hardly drew any notice. 

Ask yourself whether you see any of your own family’s journey reflected in the paths of Justices Gorsuch and Kavanaugh? Justice Gorsuch’s mother, Anne M. Gorsuch, served as the first female Administrator of the Environmental Protection Agency under President Ronald Reagan. Everett Edward Kavanaugh, the father of Justice Kavanaugh, was a Washington D.C. lobbyist and lawyer who would go on to serve as the president and CEO of the Cosmetic Toiletry and Fragrance Association until his retirement in 2005. While the median household income was $67,521 in 2020, a decrease of 2.9 percent from the previous year, tuition at the Georgetown Preparatory School is $39,385 for day students and a jaw-dropping $63,800 for those who reside at the school. 

This very thin upper-crust slice of American life is also reflected in the justices’ educational trajectories. As graduates of Harvard and Yale law schools, Justices Gorsuch and Kavanaugh, respectively, fit right in the mold of justices who have historically sat on the court — the majority of whom have graduated from only three law schools: Harvard, Yale, and Columbia. One study showed that only two percent of students at the top 20 law schools come from the bottom socioeconomic quartile of the population, while more than three quarters come from the richest socioeconomic quartile.

Those selected to serve as final arbiters on questions of fundamental import should not be so visibly at odds with the racial and gender demographic makeup of our society — and their lives should not have been so thoroughly shielded from the financial hardships that afflict the 37.2 million Americans living in poverty. 

Whatever previous generations may have thought of the Supreme Court, few in the body politic today view this institution as untainted by partisan politics. Gallup polling conducted at the end of 2021 indicated only 40 percent of the public approves of the court — a new low. The appointment of a Black woman to the Supreme Court, the very first in our Nation’s long history, will help provide some much-needed legitimacy to a court largely protected from the day-to-day hardships experienced by most Americans.

As pleased as I am with President Biden’s important step to create a more inclusive court, I do hope the long journey to diversify the court will next focus on the justices’ socioeconomic backgrounds — an invisible factor more challenging to track, but which contains the potential to transform not only the court’s jurisprudence but the general public’s faith in the institution.

Monica Teixeira de Sousa is a Professor of Law at New England Law, Boston, who has written and presented on issues of equity and education.