Federalism, diversity, equality, and Article III judges: geography, identity, and bias.

• Author: Rush, Sharon E.
• Position: Abstract through IV. Grutter's Lessons About Federalism, Diversity, Equality, and Article III E. Lesson Five: Diversity Helps to 'Unlearn Prejudice,' p. 119-153

Abstract

Each individual has a background, and that background shapes the individual's views about life, creating an inevitable form of bias referred to as "experiential bias." Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O'Connor connected racial and geographic identity in her Grutter opinion, specifically acknowledging that the experiences associated with race and with growing up in a particular region shape a person's views. This article explores how geographic identity and other identity traits are important to both federalism and equality principles because state identity is at the heart of federalism and individual identity is at the heart of equality. Both states and individuals, with the associated experiential biases stemming from geography and other identity traits, have interests in being represented in a democracy that values federalism and equality.

In recent years, the geographic background of the United States Supreme Court, for instance, has shifted from one which is representative of the nation, to one dominated by appellate judges from the northeast. The importance of this shift cannot be overstated, as studies have shown that judges are as much as twice as likely to affirm opinions from their geographic "home" courts as those from any other. Also, as discussed following Justice Sotomayor's "wise Latina woman" comment, the Court lacks diversity in ways that implicate equality principles as well. This article concludes that for purposes of federalism, diversity, and equality, the selection pool for Article III judges must be broadened in terms of both geography and experience.

Table of Contents I. INTRODUCTION II. FEDERALISM AND GEOGRAPHY A. The Importance of States B. Diversity Jurisdiction III. BIAS A. Questions of Fairness 1. Conflicts of Interest 2. Prejudice B. Experiential Bias IV. GRUTTER'S LESSONS ABOUT FEDERALISM, DIVERSITY, EQUALITY, AND ARTICLE III A. Lesson One: Diversity and Equality Are Related B. Lesson Two: Diversity Overshadows Equality C. Lesson Three: Individual and Group Identity Inform Experiential Biases D. Lesson Four: Grutter and Fisher Are Federalism Cases, Too E. Lesson Five: Diversity Helps to "Unlearn Prejudice" F. Lesson Six: The Holding in Fisher Is Irrelevant to Diversity Goals G. Lesson Seven: This All Relates to the Article III Judiciary V. BIAS AND FEDERAL JURISDICTION A. Diversity Jurisdiction B. Federal Question Jurisdiction C. Geographic Identity of States VI. JUDGES AND IDENTITY: FROM FEDERAL JURISDICTION TO EQUALITY VII. THE SUPREME COURT A. Geographic Diversity and Federalism 1. Early History 2. The Waning Importance of Geographic Diversity B. Suggestions for Increasing Geographic Diversity VIII. CONCLUSION "The life of the law has not been logic; it has been experience." --Justice Oliver Wendell Holmes, Jr.

1. INTRODUCTION

   What does a state's interest in federalism have in common with an individual's interest in equality? This Article offers an answer to this question by exploring the rich and complicated relationship among federalism, diversity, equality, and the Article III judiciary. This relationship takes center stage in a number of cases decided by the Rehnquist and Roberts Courts. For example, in the 2013 term alone the Court decided cases involving the balance between federalism and equality in the areas of voting rights, (1) gay rights, (2) and affirmative action. (3) For the past several decades, the Court has been increasingly interested in deciding cases in which federalism and equality are pitted against each other. This Article suggests that remarkable similarities exist between a state's interest in federalism and an individual's interest in equality. An exploration of geography, identity, and bias in the context of the Article III judiciary highlights those similarities.

   The idea for this exploration springs from the Supreme Court's opinion in Grutter v. Bollinger, in which the Court held that a state has a compelling interest in admitting a diverse class of students to its public universities, and can therefore use race as a factor in making admissions decisions. (4) Writing for the majority, Justice O'Connor opined: "Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters." (5)

   No one is surprised that racial identity helps shape a person's views or that valuing diverse viewpoints supports racial equality. Justice O'Connor's opinion, however, highlights that geographic identity also influences an individual's views. And, of course, federalism and geography are inextricably intertwined.

   Justice O'Connor's observation, that both geographic and racial identity help shape an individual's views, invites an exploration into the similarities between the two and how they relate to federalism and equality. Understanding this relationship is critically important, especially given the country's history. Significantly, geography and race shaped the states' earliest identities, particularly in the ways that the country respected a state's identity and sovereignty at the expense of slaves and their individual racial identities. (6) The desire of some states to expand slavery into the new Western territories created a major rift between states that began to identify as either "slave" or "free" states. (7) These differences ultimately caused the Civil War.

   The Thirteenth Amendment abolished slavery, but the historical slavery divide that separated the North from the South had a lasting impact on the identities of those regions and the states and individuals within those regions. For example, the issue in the recent Supreme Court case Shelby County, Alabama v. Holder was whether Shelby County, Alabama, and other counties and states more generally, no longer discriminated on the basis of race in its voting practices, thus freeing the county from having to seek preclearance from the federal government before implementing any changes to its voting laws. (8) Chief Justice Roberts asked during oral arguments if it was the government's position that "the citizens in the South are more racist than citizens in the North[.]" (9) At a press conference following the hearing, Shelby County Attorney Frank Ellis said, "We are a different and better nation today so it is only right that our federal laws should treat each of the 50 states equally." (10) Shelby County and Chief Justice Roberts' question, along with the responses it generated, could not be more poignantly illustrative of the lingering effects slavery has had on the identity of both southern and northern states, as well as the individuals living in those states.

   Today, the tension between states' interest in federalism, individuals' interest in equality, and their shared interest in protecting their identities as full participants in our democracy is evident in myriad contexts. (11) Picture the images of people suffering in Louisiana in the aftermath of Hurricane Katrina, or think of the executives sitting around a large walnut conference table at a corporate board meeting on Wall Street. (12) Consider the importance of race and federalism in the contexts of gerrymandering, (13) public education, (14) health care, (15) juvenile justice, (16) and prison incarceration. (17) As these examples illustrate, the mental picture of who inhabits what space is historically and currently racial.

   Part 1 of this Article highlights how state identity is central to Article III because, in our democracy and consistent with the Tenth Amendment, the state is the primary unit from which federalism is measured. (18) States are identified by their geographic boundaries, the electoral college gives each state a voice in the election of the President, (19) and each state is represented in Congress by two senators (20) and a pro rata share of representatives in the House. (21) Each state also has its share of Article III judges, (22) making these judges essentially representatives of the states. Admittedly, the judges' Article III life tenure and salary protection (23) tend to camouflage the representational connection they have with the states and the people. Those protections create an impression that the judges must be sealed off from the people precisely so the people cannot unduly influence the judges, who must be independent and impartial. In reality, the idea that Article III judges are representatives of the states and the people is found in the constitutional provisions that empower the President to nominate judges to the Article III bench, provide for Senate confirmation of the judges, (24) and even in those provisions that provide for impeachment. (25) The representational connections function to preserve important constitutional values: separation of powers, federalism, and individual liberties, including equal protection. This Article focuses on the relationship among federalism, equality, diversity, and Article III.

   As important as it is to have each state represented in the Article III judiciary, the Framers' concern about states being biased in favor of their own citizens in state court provided the rationale for Article III's diversity jurisdiction. (26) "Bias" in this context, of course, can only mean a shared "ideology" based on a shared geography between a litigant and his or her home state judge. (27)...