February 16, 2016


In a largely overlooked passage in his dissent from the court’s decision in June establishing a constitutional right to same-sex marriage, he left detailed suggestions.

Avoid “tall-building lawyers,” especially ones who work in skyscrapers in New York. Find someone who did not go to law school at Harvard or Yale. Look for a candidate from the Southwest. Consider an evangelical Christian.

Justice Scalia was criticizing the lack of diversity of the court he sat on, and he did not exclude himself. He was right as a factual matter: Supreme Court justices these days are by many measures remarkably similar, giving the court the insular quality of a private club or a faculty lounge. . . .

To be sure, the court is by some standards reasonably diverse. For the first time it has three women, one of whom is Hispanic. It has an African-American member, only the second in its history.

On the other hand, Justice Scalia wrote, the court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Justice Scalia attended Harvard, as did five other current members of the court. The other three went to Yale.

Well, that’s America’s elite bar, where diversity means people from Harvard and Yale. Plus:

Since Justice John Paul Stevens retired in 2010, the court, for the first time, has no Protestant member. Justice Scalia was Catholic, as are five other justices on the current court. The other three are Jewish.

In his dissent from June, Justice Scalia decried this state of affairs, writing, “Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Justice Scalia also surveyed the lack of geographical diversity on his court. “Four of the nine are natives of New York City,” he wrote.

Indeed, every borough but Staten Island was represented. Justice Scalia was from Queens. Justice Ginsburg is from Brooklyn, Justice Kagan is from Manhattan and Justice Sonia Sotomayor is from the Bronx.

“Eight of them grew up in east- and west-coast States,” Justice Scalia wrote. “Only one hails from the vast expanse in-between,” he added, referring to Chief Justice John G. Roberts Jr., who is from Indiana.

“Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count),” he added, discounting the backgrounds of Justice Anthony M. Kennedy, who was born in Sacramento, and Justice Stephen G. Breyer, who was born in San Francisco.

Flyover people should focus on electing people to Congress who will then pretend to fight for them. They can’t be trusted with real power.

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