Opinion | What if the Supreme Court Had an L.G.B.T. Justice?


Near the end of this year’s hit Broadway show “What the Constitution Means to Me,” the audience hears a scratchy old recording of an oral argument at the Supreme Court. The year is 1965, and the justices are debating the topic of married women’s right to birth control. Or that’s the idea, anyway; for what feels like an eternity, the nine black-robed men do little but stammer and clear their throats.

“Just listening to all those male voices deciding cases about female bodies, the absurdity of it hit me so hard,” Heidi Schreck, who wrote and performed the one-woman show, told me. “There was a gap in their ability to imagine lives that were very different from their own.”

The scene was on my mind on Tuesday morning as I sat through oral arguments in a landmark trio of L.G.B.T.-rights cases at the Supreme Court. The cases involved three people — two gay men and one transgender woman — who were fired from their jobs, they alleged, because of their sexual orientation or gender identity. All three plaintiffs sued under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex.

For two hours, the justices and the lawyers for both sides debated everything from the meaning of the word “sex” to the nature of congressional intent to the wisdom of sex-segregated bathrooms. I couldn’t help noticing what was missing: the voice, and the perspective, of an openly L.G.B.T. justice. Instead, nine straight people were deciding whether to afford some of the most basic measures of equality to people who identify as gay or transgender and who make up roughly 5 percent of the United States population, according to a Gallup estimate.

The court’s lack of diversity is not news. For nearly all of American history, the nation’s founding charter and laws have been interpreted exclusively by white men. Not until 1967 did a black justice, Thurgood Marshall, join the bench. Fourteen more years would pass before a woman, Sandra Day O’Connor, finally took a seat.

There has never been, so far as we know, a justice who identifies as gay or lesbian, nor is there likely to be one soon; self-identified L.G.B.T. people make up less than 1 percent of the federal judiciary as a whole, according to a new report by the Center for American Progress. What does that mean for the development of the law or for the civil and constitutional rights of gay and transgender Americans?

A familiar response: Stop being so obsessed with identity politics; all that matters is a judge’s willingness to abide by the Constitution. But we know that’s not true. Every judge brings his or her own life experiences to the bench, and the Constitution’s language is vague enough to permit a range of interpretations that draw from those experiences. The justices themselves have acknowledged this.

In a 1992 article, Justice O’Connor recalled that when she joined the court, she had no experience of “being a minority in a society that cared primarily for the majority.” But after listening to Justice Marshall’s perspective as a black man in America, she came away with a deeper awareness of racial disparities. He “imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of the legal argument but also to the power of moral truth,” she wrote.

When Justice O’Connor stepped down in 2006, Justice Ruth Bader Ginsburg was for a few years the only woman on the court. In a 2009 interview, she noted a recent Fourth Amendment case brought by an eighth-grade girl who had undergone a humiliating strip-search at school. During oral arguments, she said, the male justices were too dismissive. “They have never been a 13-year-old girl,” she said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Justice Ginsburg later recalled being asked when she thought there would be enough women on the Supreme Court. “When there are nine,” she answered.

This is not about bean counting; it’s about preserving the legitimacy of the court in the eyes of all Americans. It’s also about producing fairer outcomes. Research has found that the presence of a female or black judge on an appellate court panel influences how the other judges vote in sexual harassment and affirmative-action cases.

In Tuesday’s arguments, the justices spent an inordinate amount of time fretting over the future of separate bathrooms for men and women — even though that issue wasn’t before the court. “If there were a judge on that court right now who was trans,” Ms. Schreck suggested, “it wouldn’t have gotten so caught up in that ridiculous issue.”

“As humans, we overestimate our ability to imagine someone else’s experience,” she said. “I don’t think we’re very good at it. We think we are, so we can have this quote-unquote neutral court, but I think we’re bad at it. It’s something that’s very difficult to do, to truly put yourself in someone else’s place.”

To be sure, the mere presence of an underrepresented demographic on the court doesn’t guarantee a specific outcome — a point Justice Marshall emphasized when he rejected the idea that he should be replaced by another black justice. “There’s no difference between a white snake and a black snake,” he said. “They’ll both bite.” (Justice Marshall’s seat was filled by Justice Clarence Thomas.)

By the same token, Justice Anthony Kennedy, who retired last year, wrote the lead opinion in all of the court’s major rulings protecting or expanding gay rights.

But no matter who sits on the court, it has only nine seats, and can never represent fully a nation of 330 million people. I posed that dilemma to Ms. Schreck. “My first answer would be, great, let’s expand the court!” she said.

“My second answer would be, sure, it can’t ultimately. But we can certainly do better than we’re doing now.”



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