Is Justice Sotomayor Really Diverse?

I'll be honest--I was happy to see Justice Sotomayor get the nod, and confirmation, to SCOTUS as she obviously brings many levels of diversity to the Court. This, in my opinion, is wonderful. It is essential that the Justices of this nation’s highest court have the experiences necessary to adequately address a wide range of legal issues.

My emphasis on diversity is largely attributed to my belief that all judges, to varying extents, practice judicial activism. Everyone, even the strictest textualist, has his/her legal analysis shaped by his/her policy views in some, however remote, manner. Like it or not, the policy views of the Justices drastically affect their constitutional interpretation. Therefore, due to the pervasiveness of judicial activism, it’s imperative that the Court be comprised of legal scholars with varying backgrounds so as to ensure that one set of policy views does not guide the Court’s legal analysis. A homogeneous Court is not ideal for this country.

In addition to being a brilliant legal mind, Jusice Sotomayor brings a truly unique background to the Court. From her gender and ethnicity to her impoverished childhood, Justice Sotomayor’s appointment has helped ensure that the Court be anything but homogeneous, and this should be applauded.

However, Justice Sotomayor lacks diversity in one key area: her legal education. She graduated from Yale Law School in 1979. Justice Sotomayor’s Yale Law pedigree means that eight of the nine current Justices attended Harvard or Yale Law School (granted, Justice Ginsburg transferred to Columbia after her first year at Harvard). It may seem trivial to dwell on such an issue. After all, Yale and Harvard are the nation’s preeminent law schools and it only makes sense that the Justices possess the most accomplished educational backgrounds. However, when one understands that policy views play a vital role in the Justices’ legal analysis, it has to seem a bit odd that so many Justices received their legal training (or legal indoctrination, if you will) at the same institutions. Seven of the eight current Justices who attended Harvard or Yale Law School graduated in the ‘60s or ‘70s, meaning that they were likely taught by many of the same professors. These professors undoubtedly played a role in molding their legal minds.

I’m not arguing that the appointment of the next Justice come from a tier three law school for the sake of diversity. I merely think that too much emphasis is put on a Harvard or Yale Law pedigree, particularly by the media. Although Justice Sotomayor is extremely deserving of her appointment, it’s important to remember that there were several other equally impressive potential nominees that did not possess the Harvard/Yale Law pedigree. See, e.g., David Tatel (Chicago ’66); Diane Wood (Texas ’75); Leah Ward Sears (Emory ’80); Kim McLane Wardlaw (UCLA ’79); and Margaret McKeown (Georgetown ’75).