Why is it important to have diversity on the Supreme Court?

For almost all of its history, the U.S. Supreme Court has been made up of White men.

President Biden has promised to nominate a Black woman to the court for the first time, to replace retiring Justice Stephen G. Breyer. She would be only the eighth person in the court’s 233-year history who was not a White man.

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A number of Senate Republicans have pushed back against Biden’s promise specifically to add a Black woman to the court, saying she would simply be a beneficiary of affirmative action rather than chosen because of her qualifications.

But only modern presidents have placed a premium on racial and gender diversity when nominating lifelong appointees to the Supreme Court — a stark reality visible in the court’s class photos.

The result is that the interpretations of Americans’ rights — for instance, the right to have a lawyer, the right to abortion, protection against gender-based discrimination — have been made almost exclusively by White men.

Members of the U.S. Supreme Court are seen in a 1953 photo before they issued the first school integration order in 1954. From Left, seated Associated Justices Felix Frankfurter and Hugo Black, Chief Justice Earl Warren, and Associate Justices Stanley Reed and William O'Douglas. Standing: Associate Justices Tom Clark, Robert H. Jackson, Harold H. Burton and Sherman Minton. (AP Photo) (AP/AP)

1954 — Brown v. Board of Education

In one of the most famous Supreme Court cases, the justices unanimously ruled that segregating children in public schools on the basis of race was unconstitutional.

(Original Caption) The U.S. Supreme Court poses for its first picture today since Abe Fortas replaced Arthur Goldberg, now U.S. Ambassador to the U.N. left to right, standing: Associate justices Byron R. White; William J. Brennan Jr.; Potter Stewart; and Abe Fortas. Seated: Tom C. Clark; Hugo L. Black; Chief Justice Earl Warren; William O. Douglas; and John M. Harlan. (Bettmann Archive/Getty Images) (Bettmann Archive/Getty Images/Bettmann Archive/Getty Images)

1966 — Miranda v. Arizona

In a 5-to-4 decision, the Supreme Court decided that those detained by police should be informed of their constitutional rights before being interrogated.

Members of the United States Supreme Court. The Court's newest member, Thurgood Marshall (top right), is the first African American to sit on the high tribunal. The justices are (back to front, seated): John Marshall Harlan, Hugo LaFayette Black, Earl Warren, William O. Douglas, and William J. Brennan Jr. Standing (back to front): Abe Fortas, Potter Stewart, Byron R. White, and Thurgood Marshall. (Bettmann Archive/Getty Images) (Bettmann Archive/Getty Images/Bettmann Archive/Getty Images)

1968 — Terry v. Ohio

The court held that the controversial police practice of stopping and frisking someone suspected of wrongdoing does not violate that person’s constitutional protections.

This is a Jan. 1971 photo of members of the U.S. Supreme Court in Washington, D.C. Seated from left are, Associate Justices John W. Harlan and Hugo Black; Chief Justice Warren E. Burger; Associate Justices William O. Douglas and William Brennan Jr. Standing from left are, Associate Justices Thurgood Marshall, Potter Stewart, Byron R. White and Harry A. Blackmun. (AP Photo) (AP/AP)

1971 — Phillips v. Martin Marietta Corp.

The all-male Supreme Court decided that it was unconstitutional to hire men with young children but not women with young children. But the ruling did not entirely close the door on gender discrimination.

Members of the U.S. Supreme Court are seen, April 20, 1972. They are from left, front row: Associate Justices Potter Stewart; William O. Douglas; Chief Justice Warren E. Burger; Associate Justices William J. Brennan, Jr.; and Byron White. In the back row: Associate Justices Lewis F. Powell, Jr.; Thurgood Marshall; Harry A. Blackmun; and William Rehnquist. The Court poses for formal pictures when its membership changes. (AP Photo/John Rous) (John Rous/AP)

1973 — Roe v. Wade

Another landmark women’s rights case decided entirely by men established a constitutional right to have an abortion, until the fetus would be viable outside of the womb.

This is a 1982 official portrait of the Supreme Court. Seated from left are Thurgood Marshall; William Brennan Jr.; Chief Justice Warren Burger, Byron White and Harry Blackmun. Standing from left, John Paul Stevens, Lewis Powell, William Rehnquist and Sandra Day O' Connor. (AP Photo) (AP/AP)

1986 — Bowers v. Hardwick

The court, including Justice Lewis Powell, upheld sodomy bans. A well-told story is that Powell told one of his clerks that he had never met a homosexual, according to University of Texas law professor Stephen Vladeck. That clerk was gay. (Bowers was overturned in 2003.)

This lack of representation has led to some controversial decisions in modern times, such as the court’s allowing police to stop and frisk a person on the suspicion that the person might be involved in a crime, or not closing the door entirely to discriminating against women in the hiring process.

In 2013, the Supreme Court knocked down a portion of a federal law designed to protect Black voters from discrimination at the polls, and this year, it declined to stop an abortion ban in Texas from going into effect. And on Monday, it decided to let stand an Alabama congressional map that a lower court said should have included more majority-Black districts.

Diversity has trickled into the court in modern times, and there are indications that it has made a difference, such as when the court allowed a state to ban Confederate flag license plates and cross burning, rejecting free-speech arguments. Sometimes, the impact of diversity rippled out from a fiery dissent by a justice that animated minority groups and helped drive a political conversation.

“We wouldn’t have had many of the rights we have today, maybe most of them, if it wasn’t for White men,” said Lisa Soronen, an analyst of the court and executive director of the State and Local Legal Center, which supports states and local governments in cases before the Supreme Court.

“Every person of color and woman is relieved we’re no longer in a world where we have to rely on White men and their generosity.”— Lisa Soronen, court analyst and executive director of the State and Local Legal Center

Here are some examples of how the few instances of racial and gender diversity on the Supreme Court have made tangible changes to American life.

Where the court goes from here

Representation doesn’t always translate into expanded rights for the people being represented. Often, judicial philosophy takes precedent. See Amy Coney Barrett and Thomas, who often side with their White male conservative colleagues.

Sometime this year, the Supreme Court may get its first Black female justice. But there still are many Americans who have never been reflected on the court. For example:

There’s never been a justice of Asian or Native American descent.

No justice has ever publicly identified as being gay.

There has never been a Muslim justice.

No current justice has represented criminal defendants despite the fact the court regularly hears cases where convicted criminals’ lives are literally in their hands.

Seven of the nine justices spent most of their careers in the Northeast, and most went to either Harvard or Yale law schools. None went to a public law school or university.

Most of the current justices were well off financially growing up. (The exceptions are the two justices of color. Thomas grew up poor in Georgia, and Sotomayor grew up in public housing in the Bronx.)