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Demographics of the Supreme Court of the United States |
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This article is part of the series on the |
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The demographics of the Supreme Court of the United States have been raised as an issue since the Court was established in 1789. For its first 180 years, Supreme Court justices were almost always white male Protestants.1 The 20th century saw the first appointment of a Jew (in 1916), an African-American (1967) and a woman (1981). Prior to the twentieth century, a few Roman Catholics were appointed, but concerns about "diversity" of the Court were mainly in terms of geographic diversity, to represent all geographic regions of the country, as opposed to ethnic, religious, or gender diversity.2
In spite of the interest in the Court's demographics and the symbolism accompanying the inevitably political appointment process,3 the gender, race, educational background or religious views of the Justices has played little role in their jurisprudence. For example, the two African-American Justices had similar personal backgrounds at the time of their appointments, yet their opinions reflected radically different judicial philosophies; William Brennan and Antonin Scalia shared Catholic faith and a Harvard Law School education, but shared little in the way of jurisprudential philosophies. The court's two female justices voted together no more often than with their male colleagues, and no particular "female perspective" can be discerned from their opinions.4
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For most of the existence of the Court, geographic diversity has been a key concern of presidents in choosing Justices to appoint.2 This was prompted in part by the early practice of Supreme Court Justices also "riding circuit" - individually hearing cases in different regions of the country. In 1789, the United States was divided into judicial circuits, and from that time until 1891, Supreme Court Justices also acted as judges within those individual circuits.5 George Washington was careful to make appointments "with no two justices serving at the same time hailing from the same state".6 Abraham Lincoln broke with this tradition during the Civil War,5 and "by the late 1880s presidents disregarded it with increasing frequency".5
Although the importance of regionalism declined, it still arose from time to time. For example, in appointing Cardozo, President Hoover was as concerned about the controversy over having three New York Justices on the Court as he was about having two Jewish Justices.7 David M. O'Brien notes that "[f]rom the appointment of John Rutledge from South Carolina in 1789 until the retirement of Hugo Black [from Alabama in 1971, with the exception of the Reconstruction decade of 1866-1876, there was always a southerner on the bench. Until 1867, the sixth seat was reserved as the 'southern seat'. Until Cardozo's appointment in 1932, the third seat was reserved for New Englanders."8 The westward expansion of the U.S. led to concerns that the western states should be represented on the Court as well, which purportedly prompted William Howard Taft to make his 1910 appointment of Willis Van Devanter of Wyoming.9
However, geographic balance has not been raised as a concern since the 1970s, when Nixon attempted to employ a "Southern strategy", hoping to secure support from Southern states by nominating judges from the region.10 Nixon unsuccessfully nominated Southerners Clement Haynsworth of South Carolina and G. Harrold Carswell of Georgia, before finally succeeding with the nomination of Harry Blackmun of Minnesota.11
The current court has a majority from the Northeastern United States, with six Justices coming from states to the north and east of Washington, D.C.. The remaining three Justices come from Illinois, California, and Georgia. There is some dispute, however, in determining which state a Justice may be from. Because many nominees are appointed Judges who live in districts other than their hometown or home state, geographic diversity has become harder to calculate. Chief Justice John Roberts, for example, was born in New York, but moved to Indiana at the age of five, where he grew up. After law school, Roberts worked in Washington D.C. while living in Maryland. Thus, three states may claim that he is a Justice "from" that state.
Despite the efforts to achieve geographic balance, nineteen states have never produced a Supreme Court Justice. Some states have been over-represented (although partly because there were fewer states from which early Justices could be appointed), with New York producing thirteen Justices, Ohio producing ten, Massachusetts nine, Virginia eight, six each from Pennsylvania and Tennessee, and five from Kentucky, Maryland, and New Jersey.11 A handful of Justices were born outside the United States, mostly from among the earliest Justices on the Court. These included James Wilson, born in Fife, Scotland; James Iredell, born in Lewes, England; and William Paterson, born in County Antrim, Ireland. Justice David Josiah Brewer was born farthest from the U.S., in Smyrna, Asia Minor, (now İzmir, Turkey). George Sutherland was born in Buckinghamshire, England. The last foreign-born Justice was Felix Frankfurter, born in Vienna, Austria. It should be noted that the Constitution imposes no citizenship requirement on federal judges.
All U.S. Supreme Court Justices were white until the appointment of Thurgood Marshall, the first African-American Justice, in 1967. Since then, only one other non-white Justice has been appointed, Marshall's African-American successor, Clarence Thomas. Of the 110 Justices, 108 have been white: 98.2%.
Benjamin Cardozo, appointed to the Court in 1932, was the first Justice of non-northern European descent. A few historians contend that Cardozo, a Sephardic Jew of Portuguese descent and fluent in Spanish, should also be counted as the first Hispanic Justice.12 The majority view is that only whites and African-Americans have ever been on the Court.
Justice Antonin Scalia, who is of Sicilian heritage, was appointed in 1986, and Justice Samuel Alito was appointed in 2006. They are the first Justices of Italian descent to be appointed to the Supreme Court. It has been reported that "only since the George H. W. Bush administration have Hispanic candidates received serious consideration from presidents in the selection process",13 and that Emilio Garza was the first Hispanic judge for whom such an appointment was contemplated.14 The possibility of a Hispanic Justice has crept into political discourse. For example, in 2000, Raoul Lowery Contreras, writing in favor of the candidacy of George W. Bush, contended that "President Bush will appoint a Hispanic Justice to the United States Supreme Court and will do so from a pool of immensely qualified candidates first 15
Public opinion about ethnic diversity on the court "varies widely depending on the poll question's wording".4 For example, in two polls taken in 1991, one resulted in half of respondants agreeing that it was "important that there always be at least one black person" on the Court while the other had only 20% agreeing with that sentiment, and with 77% agreeing that "race should never be a factor in choosing Supreme Court justices".4
Of the 110 Justices, 108 have been men. All U.S. Supreme Court Justices were males until 1981, when Ronald Reagan fulfilled his 1980 campaign promise to place a woman on the Court,16 which he did with the appointment of Sandra Day O'Connor. O'Connor was later joined on the Court by Ruth Bader Ginsburg, appointed by Bill Clinton in 1993. The only other woman to officially be nominated to the Court was Harriet Miers, whose nomination to succeed O'Connor was withdrawn under fire. President Richard Nixon named Mildred Lillie, then serving on an Second District Court of Appeal of California, as a potential nominee to fill one of two vacancies on the Court in 1971.16 However, Lillie was quickly deemed unqualified by the American Bar Association, and no formal proceedings were ever set with respect to her potential nomination. Lewis Powell and William Rehnquist were then successfully nominated to fill those vacancies.
In 1991, a poll found that 53% of Americans felt it "important that there always be at least one woman" on the Court.4 However, when O'Connor stepped down from the Court, leaving Justice Ginsburg as the lone remaining woman, only one in seven persons polled found it "essential that a woman be nominated to replace" O'Connor.4
With regards to sexual orientation, no Supreme Court Justice has been identified as other than heterosexual. G. Harrold Carswell, who was unsuccessfully nominated by Richard Nixon in 1970, was later arrested and convicted in 1976 of battery for making an "unnatural and lascivious" advance to an undercover police officer in a Florida men's room.17 Some therefore claim him as the first (and, thus far, only) homosexual or bisexual nominated to the Court.18 Nixon's White House Counsel, John Dean later wrote of Carswell that "[w]hile Richard Nixon was always looking for historical firsts, nominating a homosexual to the high court would not have been on his list".19
Speculation has abounded about the sexual orientation of a few Justices who were lifelong bachelors. Benjamin Cardozo led a celibate life, and the fact that he was unmarried and was personally tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) led some of Cardozo's biographers to insinuate that Cardozo was a homosexual, but no real evidence exists to corroborate this possibility. Constitutional law scholar Jeffrey Rosen noted in a New York Times Book Review of Richard Polenberg's book on Cardozo:
Polenberg describes Cardozo's lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, I never could give Nellie the second place in my life. Polenberg suggests that friends may have stressed Cardozo's devotion to his sister to discourage rumors that he was sexually dysfunctional, or had an unusually low sexual drive or was homosexual. But he produces no evidence to support any of these possibilities, except to note that friends, in describing Cardozo, used words like beautiful, exquisite, sensitive or delicate.20
Andrew Kaufman, author of Cardozo a biography published in 2000, notes that "Although one cannot be absolutely certain, it seems highly likely that Cardozo lived a celibate life".21 Judge Learned Hand is quoted in the book as saying about Cardozo: "He [had] no trace of homosexuality anyway."22 Similar speculation has been directed at Justice Frank Murphy:
Throughout his tenure on the Court, Justice Murphy shared a hotel suite at the Hotel Washington with Edward Kemp. Murphy and Kemp first met while undergraduates at the University of Michigan, and they subsequently attended law school at Michigan. After studying abroad in England, the two men returned to the United States and Kemp began a lifelong career as Murphy's personal assistant and political adviser. It has been suggested... that Kemp and Murphy were possibly romantically and emotionally linked.23
More recently, when David Hackett Souter was nominated to the Court, "conservative groups expressed concern to the White House... that the president's bachelor nominee might conceivably be a homosexual".24 However, no evidence has ever surfaced regarding Souter's sexual orientation.
When the Supreme Court was established in 1789, the first members came from among the ranks of the Founding Fathers and were almost uniformly Protestant. Of the 110 Justices who have been appointed to the court, 91 have been from various Protestant denominations, 11 have been Catholics (one other Justice, Sherman Minton, converted to Catholicism after leaving the Court) and seven have been Jewish. Three of the 17 Chief Justices have been Catholics, and one Jewish Justice, Abe Fortas, was unsuccessfully nominated to be Chief Justice.
A number of sizable religious groups have had no Justices appointed from their group. These include Mormons, Pentecostals, Muslims, Buddhists and members of the Eastern Orthodox church. Nor has an avowed atheist or agnostic ever been appointed to the Court, although some Justices have been noted as declining to engage in any manner of religious activity.
Most Supreme Court Justices have been from various Protestant denominations, and these have included 33 Episcopalians, 18 Presbyterians, nine Unitarians, five Methodists, three Baptists, and lone representatives of various other denominations.25 William Rehnquist was the Court's only Lutheran; Noah Swayne was a Quaker. Some 15 Protestant Justices did not adhere to a particular denomination, and at least one, David Davis, was not a member of any church. Notably, the Baptist church and other evangelical churches have been underrepresented on the Court, relative to the population of the United States. So-called mainline Protestant churches have been overrepresented.
The first Roman Catholic Justice, Roger B. Taney, was appointed Chief Justice in 1836 by Andrew Jackson. The second, Edward Douglass White, was appointed as an Associate Justice in 1894, but also went on to become Chief Justice. Joseph McKenna was appointed in 1898, placing two Catholics on the Court until White's death in 1921.
Other Catholic Justices included Pierce Butler (appointed 1923) and Frank Murphy (appointed 1940). Some accounts note that Sherman Minton, appointed in 1949, was also a Catholic, but he did not join the Catholic faith until 1961 - having already retired from the court in 1956.26 Minton was succeeded by a Catholic, however, when President Eisenhower appointed William J. Brennan to that seat. In fact, Eisenhower intently sought to appoint a Catholic to the Court - in part because there had been no Catholic Justice since Murphy's death in 1949, and in part because Eisenhower was directly lobbied by Cardinal Francis Spellman of the Archdiocese of New York to make such an appointment.27 Brennan was then the lone Catholic Justice until the appointment of Antonin Scalia in 1986, and Anthony Kennedy in 1988.
Like Sherman Minton, Clarence Thomas was not a Catholic at the time he was appointed to the Court. Thomas was raised Catholic and briefly attended Conception Seminary College, a Roman Catholic seminary,28, but had joined the Protestant denomination of his wife after their marriage. At some point in the late 1990s, Thomas returned to Catholicism. In 2005, John Roberts became the third Catholic Chief Justice and the fourth Catholic currently on the Court. Shortly thereafter, Samuel Alito became the fifth on the Court, and the eleventh in the history of the Court. Besides Thomas, at least one other Justice, James F. Byrnes, was raised as a Roman Catholic, but converted to a different branch of Christianity prior to serving on the Court.
In 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah P. Benjamin to be the first Jewish Justice, and the New York Times reported (on February 15, 1853) that "if the President nominates Benjamin, the Democrats are determined to confirm him". However, Benjamin declined the offer, and ultimately became the first Jewish American to hold a cabinet post as Secretary of State for the Confederacy during the Civil War. The first Jewish nominee, Louis Brandeis, was appointed in 1916, after a tumultuous hearing process. The 1932 appointment of Benjamin Cardozo raised mild controversy for placing two Jewish Justices on the Court at the same time, although the appointment was widely lauded based on Cardozo's qualifications.
Brandeis was succeeded by Protestant William O. Douglas, but Cardozo was succeeded by another Jewish Justice, Felix Frankfurter. Frankfurter was followed by Arthur Goldberg and Abe Fortas, each of whom filled what became known as the "Jewish Seat". After Fortas resigned in 1969, he was replaced by Protestant Harry Blackmun. No Jewish Justices were nominated thereafter until Ronald Reagan nominated Douglas H. Ginsburg in 1987, to fill the vacancy created by the retirement of Lewis F. Powell; however, this nomination was withdrawn, and the Court remained without any Jewish Justices until 1993, when Ruth Bader Ginsburg (unrelated to Douglas Ginsburg) was appointed to replace Byron White. Ginsburg was followed in relatively quick succession by the appointment of Stephen Breyer in 1994 to replace Harry Blackmun.
Negative reaction to the appointment of the early Jewish Justices did not exclusively come from outside the Court. Justice James Clark McReynolds, a blatant anti-semite, refused to speak to Brandeis for three years following the latter's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to Court members on their retirement. During Benjamin Cardozo's swearing in ceremony McReynolds pointedly read a newspaper muttering "another one" and did not attend that of Felix Frankfurter, exclaiming "My God, another Jew on the Court!"29
At the time of Breyer's appointment in 1994, there were two Roman Catholic Justices, Antonin Scalia and Anthony Kennedy, and two Jewish Justices, Stephen Breyer and Ruth Bader Ginsburg. When Clarence Thomas, who had been raised as a Roman Catholic but had attended an Episcopal church after his marriage, returned to Catholicism later in the 1990s, Protestant Justices remained a plurality on the Court and were no longer a majority.
In 2005, Chief Justice John Roberts became the fourth sitting Catholic Justice, creating the first Catholic plurality on the Court. On January 31, 2006, Samuel Alito became the fifth sitting Catholic Justice.
As of 2008, the last two Democrat-nominated Justices were Jewish, and five of the last six Republican-nominated Justices either were Catholics or have since become Catholic.
In contrast, there has been only one Catholic U.S. President, Democrat John F. Kennedy (unrelated to Justice Kennedy), and there has never been a Jewish president.
Unlike other offices set forth in the Constitution of the United States, there is no minimum age for Supreme Court Justices - perhapswho? because the framers expected that the President (through the power to nominate) and the Senate (through the power to approve nominations) would effectively check the appointment of insufficiently experienced nominees. Indeed, Justices tend to be appointed after having made significant achievements in law or politics, which excludes many young judges from consideration. At the same time, Justices appointed at too advanced an age will likely have short tenures on the Court. The youngest Justice ever appointed was Joseph Story, 32 at the time of his appointment in 1812; the oldest was Horace Lurton, 65 at the time of his appointment in 1909. Story went on to serve for 33 years, while Lurton served only 4.
The youngest Justice appointed in recent memory was Clarence Thomas, 43 years old at the time of his appointment. However, the youngest Justice currently sitting is Chief Justice Roberts, who turned 53 in January 2008. The oldest current Justice, John Paul Stevens, turned 88 in April 2008. The oldest person to have served on the Court was Oliver Wendell Holmes, Jr., who stepped down after turning 90.
The average age of the Court as a whole fluctuates over time with the departure of older Justices and the appointment of younger people to fill their seats. For the current Court, this age is 68 (as of June 2008); just prior to the death of Chief Justice Rehnquist, the average age was 71.
The group of justices that served together between 1994 and 2005 did so for a longer period than any other group of nine justices in American history. From 1789 until 1970, justices served an average of 14.9 years. Those who have stepped down since 1970 have served an average of 25.6 years. The retirement age had jumped from an average of 68 pre-1970 to 79 for justices retiring post-1970. Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years. In the next 34 years since the two appointments in 1971, there was a vacancy on average only once every 3.75 years. The typical one-term president has had one appointment opportunity instead of two.30
Commentators have noted that advances in medical knowledge "have enormously increased the life expectancy of a mature person of an age likely to be considered for appointment to the Supreme Court".31 Combined with the reduction in responsibilities carried out by modern Justices as compared to the early Justices, this results in much longer potential terms of service.31 This has led to proposals such as imposition a mandatory retirement age for Supreme Court Justices,32 and predetermined term limits.33
The Constitution does not require that federal judges have any particular educational background. However, the majority of the Court's work is not momentous consideration of Constitutional provisions, but rather, unglamorous and dry legal arcana, interpreting minutiae of ERISA, RICO and so on. Consequentially, a legal education has become an unofficial prerequisite to appointment on the Supreme Court. As of 2008, every person who has been nominated to the Court has been an attorney,5 and nearly two thirds of nominees had previously been judges.5
Many of the early Justices were appointed before the advent of modern law schools, and rather than attend a formal program, they "read law" - that is, their legal studies took the form of apprenticeships with more experienced attorneys. The first Justice to be appointed who had attended an actual law school was Levi Woodbury, appointed to the Court in 1846. Woodbury had attended Tapping Reeve Law School in Litchfield, Connecticut, the most prestigious law school in the United States in that day, prior to his admission to the bar in 1812. However, Woodbury did not earn a law degree; Woodbury's successor on the Court, Benjamin Curtis, who received his law degree from Harvard Law School in 1832, and was appointed to the Court in 1851, was the first Justice to bear such a credential.34
Associate Justice James F. Byrnes, whose short tenure lasted from June 1941 to October 1942, was the last Justice without a law degree to be appointed; however Stanley F. Reed, who served on the Court from 1938 to 1957, was the last sitting Justice from such a background. In total, of the 110 Justices appointed to the Court, 45 have had law degrees, an additional 18 attended law school, and 47 received their legal education without any law school attendance.34
The table below shows which college and law school each of the current Justices graduated from:
The economic profile of the typical Supreme Court Justice has been described as "upper-middle to high social status: reared in nonrural but not necessarily urban environment, member of a civic-minded, politically active, economically comfortable family".34 Charles Beard, in his An Economic Interpretation of the Constitution of the United States, profiled those among the Justices who were also drafters of the Constitution. James Wilson, Beard notes, "developed a lucrative practice at Carlisle" before becoming "one of the directors of the Bank of North America on its incorporation in 1871".35 A member of the Georgia Land Company, Wilson "held shares to the amount of at least one million acres".36 John Blair was "one of the most respectable men in Virginia, both on account of his Family as well as fortune".37 Another source notes that Blair "was a member of a prominent Virginia family. His father served on the Virginia Council and was for a time acting Royal governor. His grand-uncle, James Blair, was founder and first president of the College of William and Mary.".38 John Rutledge was elected Governor of South Carolina at a time when the Constitution of that state set, as a qualification for the office, ownership of "a settled plantation or freehold ... of the value of at least ten thousand pounds currency, clear of debt".39 Oliver Ellsworth "rose rapidly to wealth and power in the bar of his native state" with "earnings... unrivalled in his own day and unexampled in the history of the colony", developing "a fortune which for the times and the country was quite uncommonly large".40
It has been noted that "[a]bout three-fifths of those named to the Supreme Court personally knew the President who nominated them".41 In 2008, seven of the nine sitting Justices were millionaires, and the remaining two were close to that level of wealth.42 Historian Howard Zinn, in his 1980 book A People's History of the United States, argues that the Justices cannot be neutral between the rich and the poor, as they are almost always from the upper class.43
Zinn's characterization is less applicable to the current Court. Chief Justice Roberts is the son of an executive with Bethlehem Steel; Justice Stevens was born into a wealthy Chicago family;44 and Justices Kennedy and Breyer both had fathers who were successful attorneys. Justices Scalia and Alito, on the other hand, both had parents who were teachers (Scalia's at the collegiate level, Alito's at the high school level), although Alito's father was also "a long-time employee of the New Jersey state legislature".45 Only Justice Thomas has been claimed as coming from a lower-class background. One authority states that "Thomas grew up in poverty. The Pin Point community he lived in lacked a sewage system and paved roads. Its inhabitants dwelled in destitution and earned but a few cents each day performing manual labor".46 The depth of Thomas' poverty has been disputed by suggestions of "ample evidence to suggest that Thomas enjoyed, by and large, a middle-class upbringing".47
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Works with multiple citations:
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