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.”
What did 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.
