Justice Scalia and Judicial Diversity

15 February 2016

Before the imposing body of Justice Antonin Scalia was even cold, acrimonious partisan anticipation over replacing him aligned liberals and conservatives in opposed phalanxes. Fight over the man’s legacy first, bury him later. The Republican Senate Majority, as I write, stands with spears bristling in front of the confirmation process, while President Obama is determined to send a hapless nominee their way, come what may.

But as The New York Times notes, Scalia in recent times wasn’t silent about what’s needed for the future of the highest Court. What did he want? In a word, diversity.

Anyone who’s read one true sentence about Scalia will be surprised to hear that. Isn’t this the man who opposed affirmative action, gay rights, and (we all suspect) civil rights generally? Didn’t he want to turn the clock hands back to 1950, when the color of almost every powerful person was as white as the slats of his (usually, his) picket fence? How could this progress-opposed warlord call for diversity?

Well, “diversity” can mean diverse things. Usually “diversity” promotes persons historically disenfranchised. But Scalia meant it differently. Noting that the Court was composed of people from either the East or West Coast (Roberts from Indiana being the only exception), noting that it had six Catholics and three Jews, and noting that they had all attended either Harvard or Yale Law, Scalia wanted more intellectual, religious, and educational diversity. In short, he wanted an evangelical Christian from somewhere in the middle, South, or West of the country. Not just another “tall-building lawyer.”

Echoing “No taxation without representation,” Scalia wrote in his recent dissent on Obergefell v. Hodges (the case that granted gay marriage), “no social transformation without representation.” His idea was that it is wrong for a court that lacks members from enormous portions of American society to make decisions that yank out deep roots of cultural tradition. A Court that could rule rightly on gay marriage would need an evangelical from a lesser known place and pedigree to counteract the East Coast-Ivy-imposed myopia.

But setting aside Scalia’s predictably conservative motivations (no gay marriage!), I want to ask whether his call for diversity was even coherent with his own judicial philosophy. Was it?

Scalia was an originalist. That means he favored interpreting laws according to what their text would have meant at the time it was written. Constitutional law, on this view, involves reading the Constitution according to the “original” meaning of its sentences from 1787. The meaning of the Constitution is frozen in time like Ötzi, the pre-historic man found frozen in a glacier.

Maybe Scalia hoped his own words would eventually be accorded the same respect, a legacy frozen in time?

But from the standpoint of logical coherence, I don’t think Scalia was thinking clearly when he wished for diversity, especially in the idiosyncratic sense of “diversity” he intended, since that wish fits ill with his originalist philosophy.

You see, an originalist legal theory is flagrantly indifferent to whether the people interpreting the Constitution are savvy to ordinary or genuinely diverse folks. Still less do they need to represent them. What Scalia should have said, given his theory of interpretation, is that the Court should have an historical lexicographer or syntactician in its make up. What should matter is getting the original meanings of words right, which takes an expert in history of American English. But there is little reason to think this expertise should be found among evangelicals in the middle, Southern, or Western States. Evangelical Christians aren’t usually known for historical accuracy.

Scalia, of course, would offer me a counterargument, were he here and willing to condescend. But it’s fair to say that his calls for originalism and his calls for “diversity” can only be made to stick together with a dense packing of verbal fudge.

There is, however, another theory of legal interpretation that does cohere well with the idea that we should have genuine diversity of the judiciary. And that is the legal philosophy of the late, great Ronald Dworkin, who was also a philosopher. This should not be surprising, since Dworkin championed diversity in other ways too.

Dworkin held that legal interpretation involves working out underlying moral principles suggested by a legal text. Scalia asked: what did the words of the laws originally mean? Dworkin asked: what moral ideas stand behind those words in a way that makes them significant and worth upholding?

And in Dworkin’s view we can find a genuine place for a diverse judiciary. It is well known that ignorance of circumstances of others turns into moral ignorance too. If you have no idea what it is like to live as someone else, your moral judgment may be skewed. This is suggested by Dan Batson’s work on how imagination promotes empathy. And it is exemplified in a bad way by the phenomenon of privilege—be it racial, economic, geographic, or sex or gender based—as we heard recently on Philosophy Talk.

This observation gives the fan of Dworkin, such as myself, a route from legal philosophy to judicial diversity. For Dworkin, moral principles must be understood in order to interpret the law. Moral ignorance must be overcome to understand what moral principles are relevant to situations a law is meant to cover. Diversity helps us overcome moral ignorance. So the judiciary should be diverse.

What, if anything, justifies a diverse judiciary? It would be scintillating to hear Dworkin and Scalia argue this one out. But we’re doomed not to hear anything remotely as interesting as that from the nomination battles to come. If we squint and look carefully, however, we might just notice, hovering over the liberal and conservative battle lines, the lingering ghosts of Scalia and Dworkin, looking down and urging their allies onward, over the fraught, dusty field in which their now cold bodies lie.

Comments (5)

ryoudelman@gmail.com's picture


Monday, February 15, 2016 -- 4:00 PM

A couple of thoughts:

A couple of thoughts:
A historical lexicographer/syntactician would be handy also in the case of the 2nd amendment. The current interpretation, guns for all, willy-nilly--seems very un-originalist.
It seems to me that Scalia's moral ignorance was willful, or in other words, something that came to him naturally and for which he used these interpretations of the Constitution as a kind of pretext for expressing it; if he really wanted to "diversify" the Supreme Court, could he have retired and made the case for hiring his replacement from Jerry Falwell's university?

Neil Van Leeuwen's picture

Neil Van Leeuwen

Tuesday, February 16, 2016 -- 4:00 PM

I certainly agree with you on

I certainly agree with you on the first point. The nice thing about an originalist approach is that, if it *were* done right, it would leave aside contemporary political pressures. The problem is that people only seem to like originalism when it tilts in their direction.
As for the second point, that's always a mixed bag. Everyone is to some extent culpable of moral ignorance. But I do think Scalia made decisions that prioritized legal principles over his own biases. But not always, of course.

ryoudelman@gmail.com's picture


Tuesday, February 16, 2016 -- 4:00 PM

Thanks, Professor Van Leeuwen

Thanks, Professor Van Leeuwen, for your reply.
I'm mulling that 2nd point.

Matthew Van Cleave's picture

Matthew Van Cleave

Sunday, February 21, 2016 -- 4:00 PM

I have no doubt that Scalia

I have no doubt that Scalia himself was inconsistent in lots of ways (as we all are).  The interesting question you raise is whether originalism is inconsistent with the call for diversity on the supreme court.  I think you're right that if by "originalism" we mean a theory according to which what the sentences meant in the time at which they were penned determines the interpretation of the law, then diversity is indeed irrelevant (and what we need is indeed a historical lexicographer).  But Scalia seems to have advocated various (inconsistent) ideas and (thus) how exactly he understood "originalism" isn't entirely clear, as Akhil Reed Amar outlined in a recent episode of Slate's Amicus.  So maybe diversity is consistent with some more relaxed version of originalism.  Nevertheless, it seems clear that the value of diversity fits much more comfortably with Dworkin's legal philosophy than with any version of originalism of which I can concieve. 

Neil Van Leeuwen's picture

Neil Van Leeuwen

Tuesday, March 1, 2016 -- 4:00 PM

Thanks for these comments! 

Thanks for these comments! 
I do suspect that Scalia may have been an undermining propagandist in Stanley's sense. But I have some worries about the very notion of "undermining propaganda"--it seems to me to overgenerate: it's too easy to brand elements of a conceptual framework that is different from one's own as "undermining propaganda." I have so far only read synopses of Stanley's book and not the thing itself, and I have no doubt he addresses that issue (it's an obvious one); but that would be my worry. 
As for originalism, I will indeed look more into its various forms. I think originalism is not inconsistent with calls for diversity (one could always look for an historical lexicographer from an underrepresented group) but rather at cross purposes. Furthermore, the kind of folks with whom *Scalia* would have been interested in diversifying the bench seem to be especially unlikely to serve the purposes of originalism.