Photo: Diego M. Radzinschi/ALM

Article III of the United States Constitution states that, “The judicial Power of the United States, shall be vested in one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish.” The Constitution does not provide any criteria for who may serve on the Supreme Court. Rather, Article II states that the President shall, “with the Advice and Consent of the Senate,” appoint the members of the Court.

There have been 114 Supreme Court justices since its founding in 1789. Over the history of the Court, justices have come from a range of backgrounds. Chief Justice John Marshall, described as “The Man Who Made the Supreme Court,” was the secretary of state. William Howard Taft had previously been president. Other appointees included governors, senators and attorneys general as well as from lesser offices and private practice.

Most Justices have been Protestant white men. The first Roman Catholic was Chief Justice Roger Taney in 1836, and no other Roman Catholic was appointed until 1894. The first Jew was Louis Brandeis, appointed in 1916. To date, there have been two African-Americans, Thurgood Marshall, appointed in 1967, and current Justice Clarence Thomas. The only Hispanic, to date, is Justice Sonia Sotomayor.

I have great respect for the Supreme Court. It has served as a key balance as the pinnacle of our third branch of government. Having said that, let me now say that I think there is an unfortunate trend in the recent makeup of the court. It does not have the diversity of background and experience that might provide a greater insight into the cases before it.

Of the nine Justices, all attended either Harvard or Yale Law School. (Justice Ruth Bader Ginsburg transferred to Columbia for her final year.) When President George W. Bush nominated Harriett Miers, she was criticized for being a graduate of Southern Methodist University, whose law school was said not to have the stature worthy of a Supreme Court Justice. Sandra Day O'Connor, appointed 38 years ago, is the last who did not attend either Harvard or Yale.

It is not just a matter of where the current Justices got their legal training. They all have similar legal backgrounds. Only Justice Elena Kagan had not been a Judge on a Federal Court of Appeals, and that is only because her lower court nomination lapsed before it could be acted upon. She subsequently became dean of Harvard Law. Only Justice Sotomayor had significant  experience in criminal law, working in the New York County District Attorney's office. Five of the current nine Justices had been Supreme Court clerks early in their legal careers.

There is also a distinct lack of geographic diversity on the Supreme Court. While Chief Justice John Roberts and Justice Neil Gorsuch hail from Indiana and Colorado, respectively, the others are all from the East Coast. Only Justices Ruth Bader Ginsburg and Sotomayor had not had previous positions in the executive branch. Even though there have been 114 Justices, 19 states have never been represented on the Court, and nine others have had only one.

Religious preference is another area of limited diversity. Currently, five of the nine Justices are Roman Catholic, and a sixth attended a Jesuit prep school. The other three Justices are of the Jewish faith. To be fair, religious conviction is not necessarily a predictor of judicial position.    Justices Sotomayor and Thomas, arguably the most liberal and most conservative members, are two of the Roman Catholics.

Why does this matter? After all, there is a wide diversity of opinion reflected on the Supreme Court. The cases that command our attention are generally those decided by a 5-4 vote. In the last full session of the Court, of the 71 cases that received a full written opinion, 39% were decided 9-0. Only 19 had a 5-4 split. Of the seven full sessions prior to the last, fully 50% of cases were decided 9-0, and only 18% were split 5-4. One can hope that the conformity of opinion and the homogeneity of the Supreme Court's makeup is a mere coincidence and not due to the lack of a broader perspective represented on the Court.

Late in his life, Thomas Jefferson wrote to a colleague complaining of the complexity of decisions even then being rendered by the Court. “Laws are made for men of ordinary understanding, and should therefore be construed by the ordinary rules of common sense.  Their meaning is not to be sought for in metaphysical subtleties, which may make anything mean everything or nothing; at pleasure.”

There are over 200 law schools in the United States, many with stellar reputations for training great lawyers, and there is a vast expanse of “fly-over” country that is the home of intelligent people with an array of experiences and backgrounds. Surely, it would behoove all presidents to cast a broader net when searching for candidates to be nominated to a seat on the people's highest court.

Cullen M. “Mike” Godfrey is retired from the Office of the President of the Texas A&M Health Science Center where he served as chief legal officer. He holds undergraduate and law degrees from the University of Texas at Austin. Godfrey currently serves as a director of Martin Resource Management Corp. He is a trained arbitrator and mediator who has served as a neutral in a number of disputes.