Last week, I attended the annual “We the People” CLE program, which gathers smart folks and lets them loose on the most recent High Court Term. The follow-up was complete and often enlightening.
Paul Bender, Doug Cole and Bob McWhirter offered insightful and often humorous takes on a wide variety of the cases taken by SCOTUS. Led by moderator Judge George Anagnost, they were a formidable intellectual team.
(I appreciated Professor Bender’s unintended error when he misquoted the opening words for the Court’s day: “God save the United States from this honorable Court.” Who doesn’t agree with that occasionally?)
And yet I continue to wonder about the marrying of content with the panelists who discuss it. I have covered this topic—diversity—before, and so let me mention it again.
As always, the cases explored by the panel touch on nearly all areas of human experience. But, as an example, how would the treatment of even one case—Hobby Lobby—have varied had there been even one woman scholar on the panel? Some closely held businesses apparently are untroubled by any medical product or procedure save one—and that one affects women most of all. Would a woman scholar’s view have offered a different, compelling vision?
Of course, I do not believe that all women—or all of anyone—think the same way about legal topics. But, conservative, liberal or in between, a woman panelist may have taken more than an academic interest in the issue.
The same is true of the Shelby case regarding the Voting Rights Act, or the Schuette case regarding affirmative action, or the McCullen case regarding abortion-clinic buffer zones, all ably examined. A mandatory number of African American scholars, or women, per panel is not what I’d expect. But their complete absence is surprising. (Imagine attendees’ surprise if they walked in and saw an all-woman panel, or an all-Black panel. THAT would be news!)
Adding to the oddity of the absence of diversity was the extended discussion on that very topic by the panel. Professor Bender, for example, took pains to note that all of the current Supreme Court Justices have had professional lives as professional judges, rather than some form of law practice (except for Justice Kagan). And he and others noted that the Court may be diverse in some ways, but not in socio-economics, or geography, or even religion (currently, the Court has no Protestants, six Catholics and three Jews).
An attendee could be excused for feeling some disconnect, sympathetic to the desire to see a diverse bench, while at the same time looking around the very room in which we sat …
Again, and in advance of the usual commenters who will say this is window-dressing (or worse): This is about excellent legal education, and a topic on which the State Bar of Arizona has pledged its focus. I found the discussion to be first-rate, but how can we know all of the excellent diverse commentary we are missing? A consistent absence of diverse voices on legal topics that disproportionately affect those very voices is odd, at best. And it makes you wonder if you are getting a full and complete examination of the issues underlying a Supreme Court docket.
That, after all, is what is promised.
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