Surprisingly, Scalia gave some advice on his own replacement in this summer’s controversial Obergefell v. Hodges Supreme Court decision. And now, as Justice Scalia lies in repose Scalia’s insightful words ring true that a diverse Supreme Court should benefit—and represent—all Americans.
Justice Scalia left the nation a virtual
legal memo with some unexpected advice on qualities we should look for in a
future successor on the nation’s highest court, mainly religious, educational
and geographic diversity. In Justice Scalia’s strongly worded dissent in last
year’s Obergefell-Hodges decision, which mandated same-sex marriage in all 50
states, Justice Scalia said the following: “To allow the policy question of same-sex marriage to be
considered and resolved by a select, patrician, highly unrepresentative panel
of nine is to violate a principle even more fundamental than no taxation
without representation: no social transformation without representation.”
Justice Scalia mean? Well, the current Court, prior to Justice Scalia’s death,
consisted of nine justices; four of the justices were from New York City, and
if you count Justice Alito from suburban New York and New Jersey, five of the
justices come from greater New York. Of
the other four, two were from California—Kennedy and Breyer—and one was from
Georgia—Thomas—with just one justice, Chief Justice Roberts, from the vast
Midwest of the United States.
Educationally, there are more common
threads—four went to Harvard, three to Yale, one to Cornell and one to
Stanford, and three received their undergraduate degrees from Princeton.
And this lack of diversity doesn’t stop
there. Justice Scalia also
explained in his dissent that the Supreme Court had “not a single Evangelical
Christian, a group that comprises about one quarter of Americans, or even a
Protestant of any denomination.” Before Scalia’s death, six Catholics
and three Jews made up the court. Such an elitist group of judges, Scalia
argued, was very likely to be dangerously out of step with the broader culture
of the country they seek to serve. Indeed.
Justice Scalia did not believe that the Supreme
Court should legislate from the bench. His point, however, was that if they were going to insist
on legislating from the bench, they needed to be far more representative of the
country religiously, educationally and geographically.