Diversity on the Supreme Court, Take Two

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15 Jul 2009 08:40 am

by Conor Clarke

I've been getting a lot of emails about my post on diversity at the Supreme Court, and I want to respond to some of them. (Of course, I've been getting schooled by Dish readers on lots of other subjects too! I'll respond to some of those emails later today. I've been a bit of a flake about replying, but I'm reading them all.) One reader, a third-year student at Harvard Law School, writes:

I buy the "diversity of viewpoints" justification for affirmative action. In terms of its utility on the Court, I would simply point to the case law. Among the famous examples are Thomas' influence on the cross-burning ban (he spoke from the heart during oral arguments about his personal experiences with cross-burning as a child, and it no doubt influenced the outcome of the case) and Blackmun's Roe opinion, where he oddly seemed to focus more on the rights of doctors than the rights of women (Blackmun was the former general counsel of the Mayo clinic). Notably, there were no women on the court at the time, and once a woman did join the court, abortion jurisprudence shifted quickly to a focus on women (O'Connor's health exception requirement).

I don't disagree with any of this, but it makes me think that I probably put the emphasis in the wrong place in my original argument. So let me try it again, with the stress falling differently. The question I asked is: "Why do we think racial diversity -- as opposed to diversity of opinion, religion, sex, sexuality, age, language or class -- is uniquely disposed to make an institution more effective?" Now let me belabor the point a little more.

First, I believe that racial diversity does enhance social utility. And when I mentioned the standard arguments in favor of this position last time -- better classroom discussions, stronger military leadership, smoother global business -- I wasn't trying to be coy. If memory serves, those are all examples drawn from the amicus briefs in Grutter v. Bollinger, the affirmative case at the University of Michigan Law School. If the colleges, the military and business groups all submit that racial diversity has practical benefits, I won't doubt it.

But the question is this: Are the social benefits of racial diversity unique to race? If the test is an empirical one -- discussions are better by X percent, the military is faster by Y degree, businesses make N more dollars -- what reason to we have to believe that race-based affirmative action as it currently stands is leading to the best possible social outcomes? Maybe religious diversity would make classroom discussions better. Maybe socioeconomic diversity in the officer corps would make the army more effective. I dunno.

It's an empirical question, so there must be an answer somewhere. But merely assuming that racial diversity has benefits doesn't really do enough argumentative work. It has benefits, but compared to what?

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