COLORADO SPRINGS — As the Supreme Court prepares to return to the bench next month, its two newest members have been reflecting on the absence of Justice Antonin Scalia, who died in February, and on the striking lack of diversity among the remaining justices.  They are all graduates of just three Ivy League law schools. None are Protestants. All but one come from a coastal state.  In remarks last week in Arizona and Colorado, Justices Sonia Sotomayor and Elena Kagan, President Obama’s two appointees, steered clear of commenting directly on the stalled nomination of his third choice, Judge Merrick B. Garland.  But they did talk about how a new colleague could reinforce or disrupt a court that is in some ways exceptionally homogeneous.  “We’re not as diverse as some would like in many important characteristics — educational institutions, religion, places where we come from,” Justice Sotomayor said on Thursday at a judicial conference here.  Justice Kagan, speaking on Wednesday at the University of Arizona in Tucson, said the court may suffer from what she called a “coastal perspective,” The Arizona Daily Star reported. (She is from New York City. As is Justice Sotomayor. As is Justice Ruth Bader Ginsburg. As was Justice Scalia. Between the four of them, they represented every borough but Staten Island.)  Justice Scalia made a similar point in a dissent last year. “Eight of them grew up in East and West Coast states,” Justice Scalia wrote of the court’s membership at the time. “Only one hails from the vast expanse in-between,” he added, referring to Chief Justice John G. Roberts Jr., who is from Indiana.  On this score, Judge Garland would bring a dash of variety to the court, as he is from Chicago. But he has long worked in Washington, in the Justice Department and, for the past 19 years, on the United States Court of Appeals for the District of Columbia Circuit.  In other ways, Judge Garland would not bring notable diversity to the Supreme Court.  He attended Harvard Law School, as did five of the current justices. (The other three went to Yale. Justice Ginsburg started at Harvard and graduated from Columbia.)  Judge Garland is Jewish, as are three of the current justices. (The other five are Roman Catholic.) In last year’s dissent, Justice Scalia, also Catholic, mused that his court included “not a single evangelical Christian (a group that comprises about one-quarter of Americans), or even a Protestant of any denomination.”  Judge Garland would be the eighth former federal appeals court judge on the Supreme Court. (The exception is Justice Kagan.)  Justices used to come from more varied professional backgrounds. They had often been governors, lawmakers, cabinet members, law professors, practicing lawyers or state court judges. As late as 1972, when Justice William H. Rehnquist joined the court, former federal judges were in the minority.  At the judicial conference here on Friday, Justice Kagan suggested that prior judicial experience or other deep engagement with the law was desirable given the broad social issues the Supreme Court sometimes decides. In those cases, she said, “law has a kind of values feel to it.”  “Even in those cases, you have to understand that it’s still about law,” Justice Kagan said. “You don’t want a court of free-floating philosophers. You want a court of people who really care about law and are good at doing it and are experienced at doing it and who bring that worldview even to cases that involve matters of broad principle.”  Both justices said that more diversity on the court would bolster public confidence in its work.  “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs,” Justice Kagan said in Tucson.  But does diversity on the bench affect outcomes?  “It’s obviously true,” Justice Kagan said, “that people bring their backgrounds and experiences to the job in some sense.”  But Justice Sotomayor said that shared experiences can lead to different perspectives, mentioning her ideological opposite, Justice Clarence Thomas. Both grew up poor, and both climbed to the pinnacle of the American legal profession.  “You would think that Clarence Thomas and I would be more similar, wouldn’t you, if you looked just at our background and upbringing,” Justice Sotomayor said.  Both justices said that vacancies are so infrequent and tenures are so long that change will come haltingly.  “The Supreme Court is never going to be a melting pot reflective of the country,” Justice Sotomayor said. “In most of our lifetimes, the court is only going to turn over one full circle.”  Asked if there would ever be a female chief justice, she said, “We hope that Chief Justice Roberts will have a very long tenure, and if he does, the issue of whether a woman would or would not be appointed would be a product of the circumstances of that moment.”  For now, the eight-member Supreme Court has a muted quality. It “sputters along on its new screensaver mode,” Dahlia Lithwick wrote in Slate.  That is partly a consequence of the loss of an outsize personality, Justice Sotomayor said.  “Nino Scalia was a big presence and he took up a lot of space in the room,” she said, using her former colleague’s nickname. “There’s no question that arguments have toned down a little bit. There are more silent pauses during argument.”  There is also the matter of simple math. The eight-member court has been working hard to avoid deadlocks, Justice Sotomayor said, but sometimes at the expense of actually resolving anything.  “There’s a few cases where you can see we ruled very, very, very narrowly,” she said, “and it doesn’t take a genius to figure out why.”
The justices discussed diversity on a Supreme Court drawn solely from Ivy League law schools and almost entirely from the East and West Coasts.