Many factors contribute to the power of the court, but three are especially crucial. First, the court holds the power to rule that an act of Congress or of the president is unconstitutional. Second, any person who has been adversely affected by a law or an executive act can challenge it as unconstitutional. Third, the Constitution itself contains elastic terms, such as due process of law which allow it to evolve.
Yet, despite the power of the nine unelected justices to make ultimate decisions on vital public issues, it is a curious fact that few members of the public or the press, or even of the legal profession, can name more than one or two, if any, of them. They are appointed by the president and must be confirmed by the Senate. If confirmed, they have life tenure. Because they wield such vast power and are virtually unaccountable, it is vital that they possess not only intellectual and legal qualifications, but also that they reflect the nation's diversity.
Today, seven of the current judges come from the Eastern Seaboard. Six are graduates of Harvard Law School. As for professional background, all nine were on appeals courts before being appointed to the Supreme Court. Despite the fact that women make up half the population and almost half of the legal profession, only one of the nine judges is a woman.
As Professor Meador has emphasized, the makeup of today's court contrasts sharply with those of the past. Between 1940 and 1970, the court included four former senators, a former member of the House of Representatives, three former state governors, five former attorneys general, a former secretary of the Treasury, and a former secretary of Labor.
Justice Hugo Black, who died in 1971, was the last Supreme Court justice to have served in Congress. Justice Lewis Powell, who retired in 1987, was the last to have been a practicing lawyer when he was appointed.
The court is a national institution and should reflect the diversity of the country. Different educational, professional, social, and geographical backgrounds yield varying legal and social perspectives and are more likely to enrich judicial decision-making. If justice is nothing more than "social happiness," as one legal philosopher has put it, then it is more likely to be achieved in a multiethnic, multicultural nation if that reality is reflected in its institutions.
