How about one composed exclusively of black lesbians?

By Melissa Harris-Lacewell/ The Arena, Politico

The Supreme Court figures prominently in one of my favorite thought experiments for students in my politics courses.

I try to get the students to think about the Supreme Court as an institution across time rather than as a static entity. Therefore, when we think about race and gender representation on the court we should take the court as a whole, stretching back to our nation’s founding, rather than as a snapshot from the contemporary moment. When we do this we realize that although the court looked pretty diverse when it had two white women and an African American man represented, it is a nearly entirely white, male institution across its whole history.

Despite its racial and gender homogeneity we believe that the legal reasoning and precedents set by those earlier courts are valid. Later courts may alter interpretations made by earlier ones, but never solely on the basis that the earlier courts were exclusively composed of white, male, presumably heterosexual judges.

In other words we operate with the belief that white, male legal bodies have the capacity of universal legal reasoning. We assume that those men were able to interpret constitutional intent and law in a way that applied to every member of our polity, even as our political sphere became more diverse. Even more than in executive and legislative branches, the principle of stare decisis reinforces the legitimacy of these earlier courts; courts which had little meaningful, demographic diversity.

Here is the thought experiment:

If we accept the validity of decisions made by the all-white, all-male courts, would be willing to accept the legal reasoning and interpretations of an all-African American court? If an all-white, all-male court is valid for decades, then is an all-Latino court valid? Can we imagine that justices of color, like white ones, would have meaningful ideological differences of opinion about legal interpretation that would lead to robust discourse from the court? Are we prepared to assert that Americans of color would have as much inherent right to set precedent, free of direct engagement with white judges, as white Americans have historically enjoyed on the court?

Ready to push further?

Now, can you imagine a Supreme Court composed exclusively of black women or Latinas? How about one composed exclusively of black lesbians?  Please read the rest of the article here.

(Editor Note:  Readers know the author now as Melissa Harris-Perry, weekend host of the Melissa Harris-Perry show.)