Jesse Wegman asks a fair question for the wrong reason.
To be sure, the mere presence of an underrepresented demographic on the court doesn’t guarantee a specific outcome — a point Justice Marshall emphasized when he rejected the idea that he should be replaced by another black justice. “There’s no difference between a white snake and a black snake,” he said. “They’ll both bite.” (Justice Marshall’s seat was filled by Justice Clarence Thomas.)
There are a great many underrepresented demographics in America, and if one is a slave to intersectionality, the number might reach 300,000,000, since each of us is our own unique combination of racial, sexual, class attributes. If we’re going to each get a justice who “looks like us,” whether literally or metaphorically, they’re gonna need a really big bench.
They won’t, of course, because the idea is silly, except when you look at it backwards, as Jesse apparently did while siting through the pair of Title VII cases dealing with gay employees and the Title VII case dealing with a transgender employee, lumped together in the minds of the LGBT believers.
For two hours, the justices and the lawyers for both sides debated everything from the meaning of the word “sex” to the nature of congressional intent to the wisdom of sex-segregated bathrooms. I couldn’t help noticing what was missing: the voice, and the perspective, of an openly L.G.B.T. justice. Instead, nine straight people were deciding whether to afford some of the most basic measures of equality to people who identify as gay or transgender and who make up roughly 5 percent of the United States population, according to a Gallup estimate.
Putting aside the legally erroneous characterization of the cases, which involve private employer liability for discharging employees who brought their sexual issues into the workplace and it impaired their ability to perform their job, as well as the role of the Supreme Court vis-a-vis Congress in social policy, the kicker is in the last sentence: roughly 5 percent of the population.
While the Gallup estimate is dubious, let’s assume it’s fair. That means 95% of the population, a rather significant majority, isn’t gay or transgender. More than that, the 5 percent isn’t comprised of a homogeneous group, but people of different races, different genders, different political perspectives. Some have one leg and some are deaf. Some believe that it’s transphobic for a lesbian not to have sexual interest in a trans woman with a penis. Some do not.
Which of these demographics was missing for the hearing of three cases? What would be their role after the three cases were argued and decided? Would they slip out the back door so some other demographic could take their seat when the next case, having nothing to do with the meaning of “sex” in Title VII, was called? And while we’re discussing the definition of “sex” in Title VII, what of the definition of “sex” in Title IX, which would likely be determined even though it wasn’t part of the argument at all. Where was the college sophomore justice?
A familiar response: Stop being so obsessed with identity politics; all that matters is a judge’s willingness to abide by the Constitution. But we know that’s not true. Every judge brings his or her own life experiences to the bench, and the Constitution’s language is vague enough to permit a range of interpretations that draw from those experiences. The justices themselves have acknowledged this.
This is a sneaky dig of the current composition of the court, the “abide by the Constitution” phrase suggesting some inappropriate slavishness to the text or intent of this ancient document written by straight racist white protestant men. While it’s a truism that every judge brings his own life experiences to the bench, life experience extends beyond the four corners of one’s personal demographic. If it didn’t, cis white guy Jesse wouldn’t be writing about the plight of the missing gay justice.
And indeed, the myriad issues that come before the Court demand a breadth of experience. Trench lawyers bemoan the absence of a trial lawyer in the bunch, not because she might be the advocate for trial lawyers but because she might provide insight as to the viability of some of the Court’s worst assumptions about the workability of their solutions and the damage done by issues left undecided. No matter how cool their pronouncements, if they can’t be applied in the trenches, they’re just aspirational rhetoric. Far too often, the Supreme Court’s decisions create more mess than clarity.
But who should the Supreme Court reflect, assuming we’re limited to nine, or 25, or even 157 justices?
Justice Ginsburg later recalled being asked when she thought there would be enough women on the Supreme Court. “When there are nine,” she answered.
It’s a cute answer, but is she arguing, as Jesse is, that about half the population should be denied a justice who “looks like them”? Should we have a gay justice, or perhaps a trans justice, to represent 5% of the population for the sake of three cases, but no male justices? What of the 95% of the population? Are they to be disproportionately denied representation? What of the many other demographic groups whose seat on the bench is taken by a gay justice when their case gets decided?
The laws of the United States cannot deny equal protection to anyone under the Fourteenth Amendment:
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Justices of good faith, competence and neutrality are constrained to hear argument about many equal protection issues involving a claim outside their personal life experience. If they lack a full appreciation of the issue, it’s the job of advocates to tell them, to make it clear, to make them understand what’s at stake in the case and why it matters.
And as much as they might not focus only on the issue from the perspective of a gay or trans person, Jesse should remember that the decision applies to everyone, and the perspective of the 95% of a nation that will be affected is also worthy of being considered. We will never have a Supreme Court with a pet justice for every demographic, so the best we can do is let go of the simplistic idea that the bite of a black snake stings less than a white one, and pick the wisest justices possible.