Morris: Court ‘Diversity’

September 21, 2020

by Leo Morris

Complacent, entitled establishment’s hair on fire, Part 1:

“We must replace Thurgood Marshall with another African American justice.”

“Agreed. Meet Clarence Thomas.”


Complacent, entitled establishment’s hair on fire, Part 2:

“We must replace Ruth Bader Ginsburg with another female justice.”

“Agreed. Meet Amy Comey Barrett.”


I’m probably jumping the gun a little here. As I write, Barrett is said to be the front-runner on President Trump’s short list of Supreme Court nominees. But anything can happen, and there are several good candidates on the list, including Sen. Ted Cruz of Texas. Don’t count on him, though – in today’s climate, it can’t be anything but a woman for a woman, even for someone as scornful of political norms as Trump.

I just can’t help it. 

For one thing, it is a matter of parochial pride that a second Hoosier might be joining John Roberts on the bench.

For another, speculating on the possibility of Barrett can help us focus on the identity politics that are fracturing this nation into a horde of warring tribes.

Marshall and Thomas could not be more different in their views of the Constitution, one seeing it as a living document that must be interpreted through the lens of societal evolution, the other considering it an inflexible blueprint providing the boundaries for that evolution. But both bore the burden of bringing a “black” perspective to the court.

Ginsburg and Barrett are, presumably, also polar opposites when it comes to constitutional interpretation, and as a liberal Jew and a conservative Catholic, they have not exactly been on the same political-metaphysical page, either. But many see only the “woman’s sensibilities” the court apparently can’t do without.

That worldview certainly animated Justice Sonia Sotomayor, who once said in a pre-nomination speech that “as a wise Latina woman, with the richness of her experiences,” she would “more often than not reach a better conclusion than a white male who hasn’t lived that life.” In nominating her, President Obama said he had considered “heart” and “empathy” to be prime qualifications for a court member.

But if a diversity of the human experience is a requirement for the court to have the proper empathetic perspective on the cases it considers, it fails on almost every count, not just when it comes to race and gender. Each member of the current court – every single one, including Ginsburg – attended either Yale or Harvard.

It’s all nonsense anyway.

It shouldn’t matter one little bit who the justices are. They could be the biggest hodgepodge of dissimilar characters ever assembled, or they could all be so indistinguishable that you couldn’t pick one of them out of a lineup. What matters is the intellectual discipline they bring to the bench, how they interpret the law’s fidelity to the Constitution and how committed they are to the nation’s fundamental principles.

As a firm believer in individual rights as the essential bedrock that must undergird every other aspect of our jurisprudence, I am very much in the textualist (or originalist, if you prefer) school of constitutional interpretation in the way viewed by Thomas and, it is devoutly to be wished, Barrett.

I earlier wrote “presumably” about the Ginsburg-Barrett contrast because you never know about these nominations. Sometimes justices turn out the way presidents hope they will, and sometimes they don’t.

Many of us in the judicially conservative camp had looked for Roberts to be a kindred spirit when President George W. Bush nominated him as chief justice, someone who would give the Constitution the care it deserved. But he seems determined to fill the swing-vote seat vacated by Anthony Kennedy. On any 4-4 vote, it is anyone’s guess which way he will swing.

Which means those of us on the Indiana right have had our hair-on-fire moment, Part 1.

“Sure would be nice to have a sensible, deliberate Hoosier on the bench.”

“Agreed. Meet John Roberts.”


Please let there not be a Part 2 with Barrett. She graduated from the law school of Notre Dame, where she also taught for 15 years, so there is hope.

Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at


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