The Bernoulli Effect

There is a chink in the armor of your argument. But I agree that the Court is not a legislative branch. The Supreme Court is frequently called upon to reach its decisions on the basis of emerging trends in the American public. It is debatable whether this is right for them to do, but they do it regardless. As such, it would make sense for the Court to represent a fair cross section of that public from which they claim to glean emerging trends.

A stark example of the Court's ability to detatch itself from the reality of the common man's life is the recent decision handed down regarding 5th Amendment takings by municipalities. The Court ruled that a municipality could use eminent domain to condemn private property in order to give that property to a land developer. The basis for their decision was the logic that municipalities would only act in the best interest of their residents.

On a Constitutional level, this makes no sense becuase, if it were true, there would be no need for the 5th Amendment at all. The 5th was drafted with exactly the opposite sentiment in mind. But more on point to your instant post, it represents the rather substantial disconnect between reailty as seen by the Court, and reality as seen by the common man whome they are charged with protecting by properly interpreting law and the Constitution. The Constitution is a limit on government in favor of the individual, and the Supreme Court's job is to ensure that it does exactly that regardless of what the legislature may try to do. See Marshall's majority opinion in Marbury v. Madison.

Further, the perspective of a minority on the Court has been critical in cases such as affirmative action. An insightful and scathing dissent was contributed by Justice Thomas on the University of Michigan cases in which he condemned affirmative action as an insult to minorities while reiterating the wise words of Frederick Douglas on a similar subject. I believe his status as a minority contributed to that. He excelled at all levels of his education, but at each level it was assumed that he only advanced because of a race quota. His personal accomplishments were nullified by the assumption that he had excelled only because of favor given based on his race. A white Justice could not have experienced this, and thus could not have fully understood the effect of affirmative action on minorities. Bear in mind that it is the effect of a law that the Court must examine, not simply the letter of that law.

If the Supreme Court did only interpret laws and the Constitution on their text alone, then I would have no disagreement with your argument. In fact, I agree with you that Judge Roberts is the right man for the job. However, I do beleive you overstepped when you stated that race or gender has nothing to do with decisions handed down by the Court. Yes, they interpret laws. But they are commonly, if not always, called upon to interpret those laws within the context of the effect the law has had on an individual or group of individuals. The only way a case gets to the Court is if a law has had an adverse affect on an individual. Without understanding that affect, it is impossible to properly interpret the law. Race can be a factor in fully understanding that effect.

Bear in mind that the Court once handed down Plessy vs. Ferguson. Read that case, and the description of blacks as property. Read other early cases in which the Court refers to Native Americans as savages. Would it have made a difference on these Courts to have a more diverse makeup? Would the Jim Crow laws of our recent history withstood judicial scrutiny with a more diverse Court?

Again, I don't disagree with the entirety of your post. But I do think it is a stretch to say that race should be no factor at all in selecting a Supreme Court Justice. It should be one of many factors. But it should NOT be the controlling factor that many groups are calling for it to be.