Archive for Friday, July 18, 2003

Court benefits from diversity of justices

Ideological labels fail to capture complexity of people, institution

July 18, 2003


Not long ago, the U.S. Supreme Court decided probably the most important affirmative action cases in our nation's history. In one case, the court struck down a University of Michigan undergraduate admissions process that automatically awarded 20 points on a 150-point scale for "underrepresented minority" status.

At the same time, the court upheld the constitutionality of the Michigan law school's admissions process, which does not assign points for minority status, but considers race as a subjective factor in attempting to ensure a "critical mass" of "underrepresented minority" students in each entering law school class.

As in so many cases, Justice Sandra Day O'Connor proved to be the critical vote in the 5-4 decision upholding the law school's affirmative action program. O'Connor frequently is described as a "centrist," a member of the court who is a deciding vote in sharply divided cases, and who may vote on either the "conservative" or the "liberal" side of particular cases.

Joining O'Connor were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, sometimes referred to as the more "liberal" justices, though two of them, Stevens and Souter, were appointed by Republican presidents. Dissenting in the case were Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. These four often are characterized as the more "conservative" justices.

But simple labels fail to capture the complexity of our justices and the court. For example, shortly after the affirmative action decisions, Kennedy authored for the court a landmark ruling expanding the constitutional rights of gays and lesbians. Though many would consider Kennedy a "conservative," his ruling in the Texas homosexual sodomy case was not socially conservative.

It is easy to take issue with any decision, and particularly so on controversial topics. Commentators and the public are quick to praise or decry the court's decisions. But, as Justice Hugo Black once commented, too many people seem to think that what they like is "constitutional" and what they don't like is "unconstitutional."

Nine law firms

The Constitution is more than a reflection of personal or public opinion, and what the justices do in interpreting that venerable document is more than that. That the process involves nine very human justices does not, in my view, mean that the court's decisions are "political" in the sense that the justices' votes simply reflect their personal preferences. The court operates very much as nine independent law firms, with each justice acting as he or she believes the Constitution requires in each case. The court is not "political" like the Congress or the executive branch.

All the justices are exceptional, principled people trying to interpret our Constitution in cases involving some of the most difficult issues of our time. We are fortunate to have World War II veterans (Rehnquist and Stevens), Westerners (Rehnquist, O'Connor, Kennedy and Breyer), Midwesterners (Stevens), Easterners (Scalia, Souter and Ginsburg), and a Southerner (Thomas). There are two women (O'Connor and Ginsburg) and one African-American (Thomas). Eight of the nine were lower-court judges before being nominated to the court (all but Rehnquist), and seven of those were federal appellate judges (all but O'Connor, who was a state appellate judge).

The justices have impressive credentials, but they are human and likable all the same. The photographs hint at some of the personalities. Thus, you see the grandfatherly appeal of Stevens with his trademark bow tie; the hearty laughter of Thomas as he discusses matters with his law clerks; the intensity and focus of Ginsburg; the law professorlike informality of Breyer; and the formal dignity of O'Connor. What you do not see is the wit and charm of Scalia, who frequently provides tasteful, comic relief in the courtroom during otherwise somber proceedings; the chief justice's love of court trivia, Gilbert and Sullivan, and Christmas carols; Souter's modest, self-effacing manner; or Kennedy's intellectual gregariousness and curiosity. Nor do you see Scalia's and Ginsburg's love of opera, nor Thomas' enthusiasm for NASCAR racing and the Dallas Cowboys.

Ideas, not people

My time at the court -- as a clerk for two years with Byron White and then for Thomas in his first term on the court -- convinced me that the court and the justices deserve our respect and trust. That is not to say that the court's opinions are not fair game for debate. They are. But our reactions to the court's decisions on topics such as affirmative action should reflect some deliberation of our own, just as the justices' opinions do. And our disagreements should be over ideas and issues, not the people who decided the cases. That is the essence of civil discourse.

Granted, different justices bring different philosophies, methodologies and experiences to the bench, but that is a strength, not a weakness, for the court. Indeed, in the Michigan law school case, the court emphasizes the value of diversity, a concept that can be defined in many ways.

Diversity on the Supreme Court is a value. Not because the justices "represent" particular constituencies, but because our Constitution is too important in the life of America for it to be interpreted by judges who are uniform in their experiences and philosophies. Indeed, 5-4 decisions by the court are not such a bad result in our overall constitutional scheme.

Steve McAllister, a native of Lucas, graduated from Kansas University in 1985 and from KU's law school in 1988. He clerked for U.S. Supreme Court Justices Byron White and Clarence Thomas (1989-1991) and after working for a Washington, D.C., law firm, returned to teach at KU's law school in 1993. He became dean in 2000.McAllister is one of four KU alumni who have served as Supreme Court clerks. Others are Heywood Davis (1950s), Ann Scarlett (2001-2002) and Dave Stras (2002-2003).Through the dean's connections with the Supreme Court, several justices have visited the KU campus to lecture at the law school. McAllister can be reached by e-mail at

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