Diversity in U.K. & U.S. Supreme Courts

Here is a primer on the experience of the United Kingdom and the United States in ensuring diversity in their apex courts.

In the U.K., Chapter 2 of the Constitutional Reform Act, 2005, deals with appointments. Section 63(2) of the Act mandates that “selection must be solely on merit”. Section 64 is titled ‘Encouragement of diversity’, and it reads: “The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.” Section 64(2) makes it clear that “this Section is subject to Section 63”.

According to Schedule 8 of the Constitutional Reform Act, 2005, the U.K.’s Supreme Court Selection Commission shall consist of its President and Deputy President and one member of each of the following bodies (i) the Judicial Appointments Commission; (ii) the Judicial Appointments Board for Scotland; and (iii) the Northern Ireland Judicial Appointments Commission. The Judicial Appointments Commission consists of a Chairman and 14 other Commissioners, of whom five must be lay members. The Chairman of the Commission is a lay member (https://jac.judiciary.gov.uk/commissioners). A candidate applying to be a Member of the Judicial Appointments Commission is required to give “diversity information” in his application form. This is to help the JAC to monitor progress against the equality objectives (https://jac.judiciary.gov.uk/providing-diversity-

information-jac).

In the United States, the President nominates judges to the Supreme Court. The nominated judges must appear before the Senate Committee on the Judiciary for “confirmation hearing” wherein the nominee’s legal philosophy and knowledge are exposed to the public.

At present, out of the nine justices in the U.S. Supreme Court, Clarence Thomas is African American while Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan are women. Three justices are Jews (https://en.wikipedia.org/wiki/Demographics_of_

the_Supreme_Court_of_the_United _States#Religion). Sonia Sotomayor, the first Supreme Court Justice of Latin American descent, was thoroughly grilled by Republican lawmakers for her suggestion that “a ‘wise Latina woman’ might reach a better conclusion in a case than a white man” (https://www.washingtonpost.com/news/morning-mix/wp/2017/01/13/wise-latina-woman-jeff-sessions-race-and-his-grilling-of-sonia-sotomayor/?noredirect=on&utm_term=.117a658ebc15). She explained that she was trying to inspire a group of women lawyers and that she did not believe that any ethnic, racial or gender group had an advantage in sound judging (https://epic.org/privacy/sotomayor_

transcript.pdf).

The historical neglect of women in appointment to the U.S. Supreme Court is best expressed in the words of Justice Ruth Bader Ginsburg: “Sometimes I’m asked the question ‘When will there be enough?’ and I say, ‘Well, when there are nine.’ For most of the country’s existence, there were nine of the same sex and they were all men, and nobody thought that that was out of order”.

Prashant Padmanabhan and V. Venkatesan