Americans Are Entitled to Government That Truly Reflects Them. Let’s Start With the Supreme Court

Our current system has created conditions where, statistically, mostly white men win. That is its own kind of special privilege. Something must change.

supreme-court-representation-white-men-black-woman
A protest outside the Supreme Court an hour after the announcement of the nomination of Justice Neil Gorsuch by former President Trump in January 2017. Gorsuch is one of 108 white men in the 115 Supreme Court justices throughout U.S. history. (Victoria Pickering / Flickr)

No one deserves special privileges—that’s the through-line of the brouhaha surrounding President Biden’s commitment to nominate a Black woman to the Supreme Court. But here’s the quiet part out loud: The people making that argument seem to mean that no one deserves special privileges anymore. Because, statistically—as many of us know—it has been the special privilege of white men to run this country, purportedly representing the rest of us, since our founding.

Here’s the rub: It’s not just historical. Today’s conversation about who deserves to be considered for seats of power merits a substantive review of who currently wields power. Today’s data shows that white men are significantly overrepresented in every part of government. They are 62 percent of all officeholders, but 30 percent of the population. That won’t change unless the country collectively acknowledges the literal concentration of American power among white men, decides it is not ideal, and takes affirmative steps to remedy it. The Court is a great place to start.

Now, railing on about white male privilege feels obvious and trite, and much ink has been spilled on the cultural meaning of identity politics. But data is different, and it makes one thing clear: American government in no way reflects America. This should not sit well with any decent American. Every time we have the chance to put a person in a new position of power, we must ask: Does this addition help reflect America? This would not just be “nice.” Choosing not to do this, by default, perpetuates a system where male, white power makes decisions for the rest of us.

American government in no way reflects America—perpetuating a system where male, white power makes decisions for the rest of us.

Data shows these claims are not hyperbolic. A Supreme Court vacancy started this inquiry: There have been 115 Supreme Court justices. 108 have been white men. One is a woman of color, appointed in 2009. (Americans have had iPhones for longer than they’ve had a woman-of-color justice.)

One might be tempted to dismiss old history, except that the Supreme Court specifically cannot be looked at as a “snapshot in time” because the Court is built on precedent stretching back to the nation’s founding. Practically speaking, that means every decision prior to 1967 (when Justice Thurgood Marshall joined the Court) reflected what a group of exclusively white men decided for everyone else in America—often to the detriment of the unrepresented.

In a nation that is 51 percent female and 40 percent people of color, are white men simply more qualified to represent the rest of us than we are of representing ourselves? That sounds ridiculous because it is. And yet that is the implication when naysayers tell us that race and gender do not matter—that the “most qualified” people can “make the best choices” for all of us, and they all just happen to be white men.

What’s worse, those white men aren’t just making broad, general decisions—each and every branch of government acts in ways that directly impact people because of their race and gender, among other identities.

  • When the Supreme Court considers affirmative action, it will be considering whether race matters for students who are already experiencing an increase in school segregation—what Jonathan Kozol once dubbed “Educational Apartheid.”
  • When Congress is inevitably asked to pass a bill to protect abortion should the Court strike down Roe v. Wade, 73 percent of the Congress making that decision will be men—not people who could even potentially experience pregnancy.
  • When recent voting rights bills failed, it was because two white Democrats and 48 Republicans (45 white and three non-white) collectively decided not to protect all American voters of color against targeted attacks on their access to the ballot.
  • When Senator Kyrsten Sinema spoke to the Senate floor about why she could not take necessary steps to protect Americans of color, she did not have to look a single sitting Black woman senator in the eye. Because there are none.

The Supreme Court is not alone in underrepresenting women, people of color, and women of color. Of 50 states, 47 governors are white, 41 are men. Nearly 70 percent of state legislators are male.

The pattern holds federally, too: Today’s Congress is the most diverse ever—a laudable achievement. Except that today’s Congress is 77 percent white, and 73 percent male. (As an example of how clear it is that Congress was simply not designed for women, Congresswomen only got their own restroom in the U.S. House in 2011.)

In the executive branch, 97.8 percent of American presidents have been white men. There has never been a woman president.

In a nation that is 51 percent female and 40 percent people of color, are white men simply more qualified to represent the rest of us than we are? This is the implication when naysayers tell us race and gender do not matter.

Of course, one might say Congress, the president and state politicians are definitionally representative, because they’re elected. But the reality of our political and economic systems means not everyone has a fair shot to run. Running is incredibly expensive, and the racial and gender wealth gaps make it harder to run and fund diverse candidates.

Further, there’s the problem of who “looks” the part. The first female major-party presidential nominee was dogged by questions of her “electability,” and recent data shows large donors gave Black women congressional candidates barely one-third of what they gave their other female counterparts. Some people don’t support women and candidates of color because they worry these candidates simply can’t win in a white male system of power—which perpetuates a white male system of power. To create equitable opportunities to run, we must change campaign finance structures. It’s a necessary precursor to getting a government that looks like everyone.

I do not make these observations to argue that diversity matters for diversity’s sake—far from it. Instead, when one assesses who has seats at the table—predominantly wealthy white men—it is no surprise that the issues that matter to so many everyday Americans are not lifted up. Women—who unfairly bear the brunt of the domestic burden, although they do not tend to get pregnant by themselves—have not had the numerical strength in Congress to simply demand paid family leave or universal childcare. People of color experiencing significant health and income disparities do not have the numerical strength to insist on universal healthcare or policies advancing social mobility.

Women—who unfairly bear the brunt of the domestic burden, although they do not tend to get pregnant by themselves—have not had the numerical strength in Congress to simply demand paid family leave or universal childcare.

Still, no group is a monolith, and race and gender alone do not dictate one’s entire worldview. For instance, Justice Amy Coney Barrett, a woman, was appointed by a president who specifically committed to only appoint anti-Roe nominees. Justice Clarence Thomas, like his predecessor Justice Thurgood Marshall, is an African American man. Clarence Thomas is no Thurgood Marshall.

Yet by protecting the status quo, where the only “neutral” candidates are white men, we continue to deny everyone else a fair shot—a serious problem when our “neutral” candidates do not all consider the equities of people unlike themselves. We must acknowledge that our current system has created conditions where, statistically, mostly white men win. That is its own kind of special privilege. Something must change.

This country should have a government that reflects the lived experiences of all Americans, including people of color, women, LGBTQ+ people, immigrants, people with disabilities and more. Today, these groups lack meaningful numbers among the bodies that dictate their lives. Asking for that representation—to break a chokehold of traditional white male power—is not a special privilege. Americans deserve a government that truly represents them. We now have an opportunity, one seat at a time, to work toward it.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Elizabeth Hira is a policy counsel and Spitzer fellow at the Brennan Center for Justice and lead author of the recent report "Equity for the People: S.1/H.R. 1 and the Fight for an Inclusive Democracy." Previously, Hira served as a lawyer on the Hill, first on then-Senator Kamala Harris’s legislative team, then on the U.S. Committee on House Administration, where she helped to craft the original iteration of H.R. 1 for passage in the 116th Congress.. Hira has consulted on judicial strategy for abortion rights and served on the Board of the New York Abortion Access Fund. She wrote and performed a one-woman show, "Pursuing Guerrilla Equality: Modern Misadventures of Gender and the Law." Find her on Twitter: @ElizabethHira.