Towards a more diverse US Supreme Court

USSC will find itself out of touch if it continues to make decisions reflecting views of Christian Caucasian males.

The United States Supreme Court ended its most recent judicial term this week in a characteristically dramatic fashion. The Court often leaves the most contentious and controversial cases to be decided last, and this year was no exception. A deeply divided Court split 5-4 over the hashtag-friendly ‘Burwell v. Hobby Lobby’ case, an innocuous name that perhaps doesn’t accurately reflect the polemical questions that lie at the heart of the justices’ deliberations, namely striking the appropriate balance between religious conviction and access to contraception.

In a decision whose impact cannot really be known until the United States’ relatively new national health insurance scheme (aka ‘Obamacare’) has been fully implemented, the justices ruled that a specific subset of corporations — those that are ‘closely held’, which often means small and family owned — could not be compelled to provide insurance coverage for certain methods of birth control if the owners of such companies judged such coverage to be ‘incompatible’ with ‘sincerely-held’ religious beliefs. However, the Court suggested that the United States government could step into the breach and provide coverage as necessary.

To non-American audiences, the outrage that this decision has provoked may seem bewildering. However, the ruling touches upon three things that are cultural touchstones in the US: access to health insurance (or the lack thereof), religious freedom, and reproductive rights. The dissenting justices opined that it was a decision of ‘startling breadth’, which might essentially legalise future discriminatory practices by corporations, so long as they claimed a violation of their convictions.

Of perhaps more immediate relevance than trying to guess at the decision’s eventual impact is the speculative analysis of the justices’ motivations. The companies which brought suit in the ‘Hobby Lobby’ case are run by people who identify with conservative Christian ideologies. The five male justices who made up the majority in the case all identify as Roman Catholic, and are 59 years of age or older. There is no way to know how much their personal beliefs inform their decision-making in this particular case, but it’s not implausible to suggest a correlation.

The Court’s three female justices found themselves in the liberal minority on the ‘Hobby Lobby’ case, as they often do with decisions that touch upon hot-button cultural issues. It was predicted that they would vote in favour of unimpeded access to contraception, and it’s easy to dismiss their votes as influenced simply by gender — after all, birth control is still seen largely as a woman’s responsibility, however inequitable this may be. This is unquestionably an over-simplified analysis, and yet it is sure to be expressed. More interesting by far is to hypothesise how the case might have been decided differently if the medication at the heart of the controversy were indicated for treatment of a distinctly male condition.

Such provocative questions matter. Supreme Court justices are appointed for life. While this is supposed to save them from the undignified political posturing and short-term thinking that Americans have come to loathe in their Congressmen and Senators, it can also saddle the Court with justices whose personal opinions have not kept pace with the ever-evolving beliefs of its citizens. However, as there are septuagenarians on both sides of the Court’s ideological divide, both conservatives and liberals have an incentive to keep their favourites around as long as possible.

America’s demographics are changing rapidly, and its younger generations do not generally hold one easily identifiable set of beliefs marking them as either ‘progressive’ or ‘traditional’. Going forward, the Supreme Court will find itself increasingly out of touch if it continues to make decisions that primarily reflect the viewpoint of Christian Caucasian males nearing retirement age. Justices would do well to consider that as they begin their summer vacations. The world may look very different by the time the Court begins again in October.

Published in The Express Tribune, July 3^rd, 2014.

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