Wednesday, February 01, 2017
In Praise of Geographic Diversity on the Supreme Court
Much ink will be spilled in the coming days, I am sure, on President Trump’s nomination of Tenth Circuit Judge Neil Gorsuch to the Supreme Court. Here I want to weigh in on one oft-neglected but important part of Judge Gorsuch's resume: the geographic diversity he would bring to the Court. Gorsuch is a Colorado native, and his address last night repeatedly invoked those western roots. By contrast, most of the current Justices hail from within the so-called Acela Corridor, stretching from Boston to Washington, D.C.
It was not always this way. Twenty-five years ago, the nine members of the Court had spent their formative years in locales all across the country: California (Kennedy), Arizona (O’Connor), Colorado (White), Illinois (Stevens), Wisconsin (Rehnquist), Minnesota (Blackmun), Massachusetts/New Hampshire (Souter), New York (Scalia), and Georgia (Thomas). The distribution was a bit heavy on the Great Lakes states, perhaps, and a bit light on the south-central part of the country, but widely representative nonetheless.
There are several reasons to believe that geographic diversity on the Court makes a positive difference. More after the jump.
First, geographic diversity can raise the Court’s legitimacy with the public by increasing regional buy-in. The November election made clear that much of the country believes that federal institutions are dominated by coastal elites. Appointing a Justice from far outside the range of the Delta/American shuttle can strengthen public belief that the Court has a national perspective. Regional pride plays a role as well: the left-leaning Denver Post strongly endorsed Judge Gorsuch for the Supreme Court opening last week, despite his conservative credentials, noting among other things that “we like his ties to Colorado.” Just as the gender, race, religion, and philosophy of a Supreme Court nominee can drive acceptance among certain segments of the public, so too can geography create the sense that “one of our own is looking out for us.”
Second, Supreme Court appointees from different parts of the country are likely to bring specialized knowledge of certain areas of law. The Tenth Circuit, for example, encompasses states in which the law concerning water rights, oil and gas, minerals and natural resources, skiing and winter recreation, the management of federal lands, and the state-federal relationship is both prominent and very strongly developed. Many of these issues are likely to come before the Supreme Court at least sporadically in the coming years. Assuming no basis for recusal, a Justice with familiarity in these areas would be a welcome addition. The same would obviously apply for other areas of the country.
Finally, childhood and adolescent experiences—and the location of those experiences—can matter to adult decision-making. No less than any other cultural influence, childhood geography can instill certain understandings about the world that remain with you as an adult. As the 2007 Scott v. Harris case notoriously demonstrated, perspectives on what constitutes reckless driving may be influenced by whether one grew up in a community reliant on subways and buses or pickup trucks and rural roads. Similarly, one’s perspective on issues related to labor, immigration, business and financial regulation, criminal justice, and so on might be affected by whether one grew up in view of factories or farms, skyscrapers or suburban malls. Or just go ask a westerner about water – water rights, water use, water conservation. While we would never expect or demand a Justice to vote a certain way based solely on geographic background, the ability to add a different perspective at least increases the chance that the Court will take it into account.
The geographic background of a Supreme Court nominee should not be the primary basis for his or her appointment to the Court, any more than the candidate’s gender, race or religion should be. But it does carry both symbolic and practical value, and it’s good to see geographic balance coming back into play.
Gorsuch has spent about 1/2 his life in Colorado and half in the BosWash corridor. His mother returned to Colorado after a few years in Washington, and both of his siblings were resident in Colorado at the time of their mother's death. His father died in 2001 in Colorado and appears not to have lived elsewhere bar for brief periods.
Posted by: Art Deco | Feb 2, 2017 4:03:36 PM
Orin and Howard,
Yours are fair points, especially in an era where people move frequently for school and work. But I do suspect that there is something special about the geography of one's formative years, which influences one's views in subtle and not-so-subtle ways (i.e., "You can take the boy out of [pick your region], but you can't take [region] out of the boy.") Gorsuch is a fourth-generation Coloradan, and (as I understand it) didn't move to D.C. until he was a teenager. Regardless of where he lived his adult life, I suspect that he identifies with the west and may view at least some issues through his experience there.
To give a lighthearted example of how experience affects interpretation: Boston had a typically bad winter during my first year of law school, and the snow piled up atop the buildings. During one class, a swath of heavy snow slid off the roof with a thunderous shake. Those who had grown up in wintry environments knew exactly what it was and didn't flinch. But one student who had grown up in California jumped out of her seat and immediately braced herself against the classroom door. She had interpreted the same rumble as an earthquake.
I'm not trying to play amateur psychologist here, but as noted in the original post, I do see some symbolic and practical value to the selection.
Posted by: Jordy Singer | Feb 1, 2017 3:39:55 PM
Valid concerns in those two comments but diversity in various areas raises such questions in application.
Posted by: Joe | Feb 1, 2017 2:16:58 PM
Building on Orin's point: Even if someone spends his entire childhood in Colorado, that link become attenuated if the next 30 are spent in NY/DC and the typical power centers. Suppose Gorsuch grew up in Colorado, then followed his same path, except landing on the Fourth Circuit or the DC Circuit. Would he have the same appreciation of water rights issues?
Posted by: Howard Wasserman | Feb 1, 2017 1:40:20 PM
Does Gorsuch really bring geographic diversity? As I understand things, he lived most of his life along the Acela corridor. He grew up in DC; graduated from high school in the DC area; went to college in New York; law school in Boston; clerked for two years in DC; went to a DC law firm, where he became a partner; and then was a DOJ official in DC. It's true that, in 2006, at the age of 37, he left the beltway and accepted a position as a court of appeals judge with chambers in Colorado. But I think he spent most of his life in DC and along the DC to Boston route.
Posted by: Orin Kerr | Feb 1, 2017 1:28:30 PM
Agreed. In a past era, circuit riding made for a more geographically balanced Court, as I understand the early history. Perhaps, a norm that in some general fashion each portion of the country should get representation is a good idea.
So many justices from the NY/NJ area was somewhat troubling.
Posted by: Joe | Feb 1, 2017 12:24:16 PM