And if blacks and hispanics were as sharp as whites, they would also be equally represented in various white collar occupations. Because it’s not as if there are other possible explanations. Right?

It amazes me that people think academic departments behave differently from, say, machine shops. People tend to hire those who look and think as they do.

If conservative lawyers were as sharp as liberal lawyers, they would be equally represented in law school faculties.

And if liberals were as patriotic as conservatives, they would be equally represented among military officers. But they aren’t.

I can think of (but won’t name — I have to work in this town)a number of male judges about whom that is true.

Second, I would challenge the statement that “prior to the 1980s, the ideologies of different judges’ clerks didn’t differ much because there was little ideological diversity among the justices themselves.” Leaving aside the point regarding justice ideology, one could argue that ideology was relevant – if a moderate justice had a chamber of four conservative or four liberal law clerks, and that justice had delegated the review of cert. petitions, the drafting of bench memos, and the drafting of judicial opinions to the law clerks, then one could legitimately argue that clerk ideology was important because of the concern of inappropriate levels of law clerks influence over decision-making. For those of you who roll your eyes whenever you hear claims of law clerk influence, I would humbly direct you attention to the following law review article: Todd C. Peppers & Christopher Zorn,Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DePaul L. Rev. 51 (2008).

Finally, the law review article that Liptak discussed raises the question of whether the justices are hiring ideological clones as part of a plan to send these former clerks out into the world to pursue the justices’ ideological preferences. This itself is an interesting twist on the clerkship model. It’s one thing for former clerks to burnish the justices’ legacy with sappy law review testimonials and gushy biographies; it is something else for former law clerks to be (directly? indirectly?) to be pursuing policy changes on behalf of their former employers. I don’t know if this is truly happening, but it’s an interesting claim.

ArthurKirkland: Prof. Somin appears to prefer, and perceive greater ideological diversity among, the Supreme Court as more Republican-appointed, conservative justices are seated.Can anyone predict what a libertarian would prefer?

Libertarians would not require a court at all, they would simply contract with Guido for enforcement of legal obligations, and the stronger Guidos would eventually drive out the weaker.

wm13 says:

It certainly isn’t disturbing that presidential administrations are politically skewed…

It’s definitely disturbing when avowedly non-partisan societal institutions, such as the universities, the armed forces, the evangelical churches, etc. become so skewed, because it weakens the ties of trust and sympathy which permit a diverse and contentious people to live together in harmony.

If conservative lawyers were as sharp as liberal lawyers, they would be equally represented in law school faculties. You are calling for affirmative action by law schools. In all my years in academia (science, not law) I have never witnessed nor heard of a good department voluntarily choosing the diversity candidate over the one deemed best qualified in terms of core competence.

I’m sympathetic to your argument. But I want to make clear what you are saying.

I just don’t think that having a woman on the court is that much of an accomplishment

I find that most unfortunate and am certain that no woman in my law school class, the class of ’66, would agree.

I do apologize for my intemperate remark earlier but if you only demonstrated a realization of what a different world it is from then, I would be much less provoked.

Can anyone predict what a libertarian would prefer?

It’s definitely disturbing when avowedly non-partisan societal institutions, such as the universities, the armed forces, the evangelical churches, etc. become so skewed, because it weakens the ties of trust and sympathy which permit a diverse and contentious people to live together in harmony.

That’s totally fair, the argument that the court is ideologically “better” than it was because there are fewer liberal lions and the centrists have moved right (and Rehnquist has been joined with other steady right-leaning votes). But it’s not the same thing at all as praising “ideological diversity.”

For me its enough to know “[your] breasts” don’t exclude you from the Court. Although, the fact that you want to discuss them probably should.

at least there are woman on the Court now, unlike when I graduated from law school.

Ah, yes, because our breasts make huge difference in the thought processes of the court.

I think you are being misled by availability bias, in that you simply forgot how much more liberal Brennan and Marshall were. A very quick search on Wikpedia for cases where Brennan and Stevens were on opposite sides shows these examples (I think every one is clearly a blockbuster), and I am sure a more detailed search will find much, much more:

1. San Antonio Independent School District v. Rodriguez.
2. UC v. Bakke.
3. Employment Division v. Smith.
4. Strickland v. Washington.
5. FCC v. Pacifica.

Ilya Somin:

I agree the Court has moved right — but that is because the left block on the Court was much further left than the left block is today.

Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.

I don’t think that’s true. There are very few issues where Souter and Stevens vote further to the right than Brennan, Marshall, and Douglas (e.g. — they would only almost completely ban the death penalty, as opposed to abolishing it totally). And these are balanced by other issues (e.g. — gay rights, national security law), where the new liberal justices are further to the left than their predecessors.

I think that’s pretty much correct. In a vacuum, one might say that Souter and Stevens are much less liberal than Brennan/Marshall/Douglas; if you simply used a time machine to flip them, Souter and Stevens would not have voted the way B/M/D did, and B/M/D would be trying to push the law rapidly to the far left now much faster than Souter/Stevens actually did. But court decisions aren’t made in a vacuum; stare decisis means that court decisions build on a pre-existing framework. Souter and Stevens were building from the precedents set down in the 60s and 70s.

In other words, relative to existing precedent, B/M/D were far more liberal, but in absolute terms, Souter and Stevens were just as liberal.

Dave N.:
I agree the Court has moved right — but that is because the left block on the Court was much further left than the left block is today.Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.The difference I see is that prior to the appointment of Justice O’Connor, there really were three blocs on the Supreme Court: the liberals (Douglas, Brennan, and Marshall); the conservatives (Rehnquist, Burger, and on many issues, White); and the centrists (Stewart, Powell, and Stevens). Now there are two (with Kennedy usually voting with the conservatives but not always).

And even here things break down because in addition to conservative/liberal there is the formalist/pragmatist split. The two sets, at least on the current court, are basically independant in terms of membership determination.

I also suspect that whether you see ideological diversity as a good or a bad thing on the Supreme Court has a lot to do with whether your views are underrepresented. .

Heh. This seems to be corollary 1 to Kerr’s Law.

I assume Ilya’s point is greater diversity in the sense of more evenness in the number of Justices to the left of American center versus to the right of American center.

I can see how that might be true, though I think it’s a more complex argument than the post lets on. And in light of his response at 10:54, I’m not sure he’s actually making that argument anyway.

Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.

I don’t think that’s true. There are very few issues where Souter and Stevens vote further to the right than Brennan, Marshall, and Douglas (e.g. – they would only almost completely ban the death penalty, as opposed to abolishing it totally). And these are balanced by other issues (e.g. – gay rights, national security law), where the new liberal justices are further to the left than their predecessors.

I assume Ilya’s point is greater diversity in the sense of more evenness in the number of Justices to the left of American center versus to the right of American center. But I agree with you that the Court today is less ideologically diverse than it was in the early 1970s in the sense of broadest range of views from far-left-to-far-right. I also suspect that whether you see ideological diversity as a good or a bad thing on the Supreme Court has a lot to do with whether your views are underrepresented. .

My point is simple: Burger and Powell were much closer to Brennan and Marshall than Scalia, et al., are to Ginsburg and Stevens. That was not true of Rehnquist, but until the 1980s, he was isolated on the Court.

In my view, the pre-1980s Supreme Court had serious flaws in its jurisprudence, and was badly in need of greater ideological diversity.

I agree the Court has moved right — but that is because the left block on the Court was much further left than the left block is today.

Justices Douglas, Brennan, and Marshall were all much further left than the Justices who replaced them, which says quite a bit since Justice Douglas was replaced by Justice Stevens and Justice Brennan was replaced by Justice Souter.

The difference I see is that prior to the appointment of Justice O’Connor, there really were three blocs on the Supreme Court: the liberals (Douglas, Brennan, and Marshall); the conservatives (Rehnquist, Burger, and on many issues, White); and the centrists (Stewart, Powell, and Stevens). Now there are two (with Kennedy usually voting with the conservatives but not always).

Just speculating.

Today’s Supreme Court has many flaws. But it is a better institution for having more genuine ideological and jurisprudential diversity among its personnel.

I’m not sure I understand this point. In, say, 1976, diversity ran from Rehnquist, Burger, and Powell on the right through Stevens in the middle to Brennan and Marshall on the left. Today the diversity runs from Ginsberg and Stevens on the “left” through Thomas, Scalia, Roberts and Alito on the right.

How can you claim that there’s more diversity today? The variance was clearly greater in 1976 than now. What your post did was re-define Justices like Burger and Stevens from “conservative” and “moderate conservative” to something else. That’s just moving the goalposts.