Abstract

Excerpted From: Christopher P. Dinkel, Andrew Ifedapo Thompson and Marc C. McAllister, National Origin Bias and U.S. Public Opinion on Supreme Court Nominees: Evidence from a Conjoint Experiment, 45 Pace Law Review 271 (Fall, 2024) (133 Footnotes) (Full Document)

As the ultimate arbiter of the meaning of federal law and the United States Constitution, the United States Supreme Court has a tremendous impact on businesses and individuals in the United States. Although the Court's decisions affect an increasingly diverse U.S. population across the country, the overwhelming majority of the Justices who have served on the Court have been white males. Consequently, recent Presidents have made a concerted effort to nominate candidates who would bring greater diversity to the nation's highest judicial office. In 2022, U.S. Court of Appeals Judge Ketanji Brown Jackson became the first black female to be appointed to the U.S. Supreme Court. Prior to her confirmation, two black men, and five other women, including one of Hispanic/Latina heritage, had also been appointed to the Court.

While these appointments have made significant progress in reflecting the diverse nature of the U.S. population regarding race and gender, they have been unrepresentative in an important area--national origin. Even though Americans who were born outside the United States constitute nearly a tenth of the U.S. population, the composition of the U.S. Supreme Court does not reflect this wide swath of the American public--and has not for more than 60 years. None of the sitting Justices on the Court were born outside the United States, and this current lack of demographic representation on the Court is no historical aberration. With the data we gathered on every U.S. Supreme Court Justice from the Federal Judicial Center's Biographical Directory of Federal Judges, we found that half of the foreign-born Justices served on the Court during the Founding Era, and since the early 1960s, not a single Justice who has served on the Court was born abroad. Thus, since 1789, only about five percent (6 of 116) of all Justices were born outside the United States. Although some foreign-born individuals have been mentioned as potential Supreme Court nominees, such as Canadian-born Jennifer Granholm, none have been appointed to the Court in recent years.

Since Justice Felix Frankfurter's retirement in 1962, why has no U.S. Supreme Court Justice been born outside the United States? In this article, our novel empirical findings based on a survey we conducted of a nationally-representative sample of the U.S. population with an embedded conjoint experiment show that the American public prefers that U.S. Supreme Court nominees be born in the United States rather than abroad. These results suggest that because U.S. Supreme Court candidates born abroad face public opposition to their nominations, they may not be chosen to become the nominee to fill a U.S. Supreme Court vacancy or might simply self-select out of contention.

Through this empirical study, we fill a gap in the literature on public preferences for the background characteristics of Supreme Court Justices. In particular, prior empirical studies have focused on public preferences towards attributes such as race, gender, and partisan leanings. However, we measure public attitudes towards a characteristic related to Justices that has been notably underrepresented over the years on the Supreme Court but that relates to a large number of Americans' backgrounds: national origin as reflected in U.S. citizenship history. Our intention with examining this dimension of Supreme Court Justices is to evaluate the extent to which Americans have consistent national origin-based preferences for high-ranking judicial officials. Other work finds that the public holds clear preferences for the characteristics of immigrants to admit to the United States, but the existing scholarship has not examined the American public's levels of support for U.S. Supreme Court nominees who were born abroad. While national origin-based discrimination in employment has been prohibited by federal law for more than 60 years, including for discrimination based on an individual's place of origin, it has been unclear to this point whether such sentiments persist among the American public with regard to public preferences for Supreme Court nominees, despite this long-standing prohibition for employers.

Therefore, in this article, we present the results of the first empirical study to systematically measure what national origin-based preferences Americans hold with respect to U.S. Supreme Court candidates. In the conjoint experiment we included in a nationally-representative survey of the U.S. public, survey respondents made a series of choices between pairs of hypothetical Supreme Court candidates with randomly varied characteristics. The key variable for the attribute of national origin as reflected in U.S. citizenship history was whether the hypothetical Supreme Court nominees were born in the United States and therefore acquired U.S. citizenship at birth under the 14th Amendment or whether they were born abroad and acquired U.S. citizenship through an alternative pathway. More specifically, the four potential options for U.S. citizenship history in the experiment were: (1) being born in the U.S. and gaining U.S. citizenship at birth; (2) being born abroad and gaining U.S. citizenship at birth; (3) being born abroad and gaining U.S. citizenship as a child; and (4) and being born abroad and gaining U.S. citizenship as an adult.

Although the U.S. Constitution contains specific citizenship-eligibility requirements for President and for Members of Congress, the country's foundational document is silent on any citizenship-related requirements for U.S. Supreme Court Justices. Thus, any Justice could potentially become a U.S. citizen through any of the routes mentioned above. However, in this study, we find that the U.S. public prefers Justices who were born in the United States and gained U.S. citizenship at birth over any of the other three alternative possible routes for U.S. citizenship acquisition, which all included birth outside the United States.

In examining survey respondents' views on Supreme Court nominees' place of birth, one potential issue is that survey respondents might infer that Supreme Court nominees who were born abroad might be likely to hold citizenship of both the United States and another country. Instead of holding a bias based on the nominees' place of birth, the survey respondents might be biased against nominees who hold citizenship of any countries besides the United States. Therefore, in our experiment, we specifically control for this possibility by including a multiple citizenship status attribute that identifies whether a nominee holds only U.S. citizenship or dual citizenship of the United States and a foreign country.

In addition, we include a host of other biographical characteristics that we anticipate might impact survey respondents' evaluation of the candidates in the experiment, such as age, education, race, and gender. Overall, we still find that the U.S. public prefers Justices who were born in the United States rather than abroad. Moreover, our main empirical results regarding U.S. citizenship history are largely similar in our analyses of preferences across subgroups of the U.S. public, including based on respondents' party affiliation, level of knowledge of the U.S. Supreme Court, and gender.

This article proceeds as follows. First, it provides a discussion of prior scholarship related to public preferences for U.S. Supreme Court nominees. Part II then examines the nature of national origin discrimination, including discrimination on the basis of being foreign born. Part III explains the data and empirical strategy used for the current study. Next, Part IV presents the main empirical findings from the survey of the U.S. public. Part V then provides the results of subgroup analyses, including an examination of potential differences in the results conditional on respondents' party affiliation, level of knowledge of the U.S. Supreme Court, and gender. Part VI presents a discussion of the results, including the implications of our study. Lastly, this article concludes with suggestions for future research.

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Through the use of a conjoint experiment among a nationally representative sample of the U.S. public, this study is the first to find that the U.S. public prefers candidates for the Supreme Court who were born in the United States rather than outside the United States, including for U.S. citizens who were born outside the United States and obtained U.S. citizenship at birth, as a child, or as an adult. Although this article presented novel empirical findings about the public's preferences regarding Supreme Court nominees, future research can build on this study in a number of key ways. First, researchers can examine the extent to which this study's results hold for nominees for other federal and state courts. Second, researchers can examine whether the public responds differently to U.S. citizenship history depending on the particular country of birth of the candidate by including the names of specific countries in the attribute options. Third, scholars can study whether the public holds a bias against candidates who were born in the United States but whose parent or parents were born abroad. Relatedly, researchers could investigate whether the level of this bias varies depending on whether only one parent was born abroad, such as with former President Barack Obama, or whether both parents were born abroad, such as with former Vice President Kamala Harris. Fourth, future studies can examine whether there are differences in levels of support for multiple citizenship status that depend on which other country is the source of the foreign citizenship for candidates who hold dual citizenship. Lastly, while ensuring that the profiles do not become so complex that they induce cognitive fatigue or survey satisficing, researchers can include other theoretically relevant options, such as type of clerkship, or other attributes, such as whether the candidate served in the military. In this way, future scholarship can build upon the findings of this study--which uncovered a consistent national origin-based bias among the U.S. public--and shed important light on the public's preferences regarding other characteristics of nominees for a vitally important institution in the United States.

Christopher P. Dinkel is an Assistant Professor in the Spears School of Business at Oklahoma State University and holds a J.D., cum laude, from Cornell Law School and a Ph.D. from Northwestern University.

Andrew Ifedapo Thompson is an Assistant Professor in the Department of Political Science at the University of Pennsylvania and holds a Ph.D. from Northwestern University.

Marc C. McAllister is an Assistant Professor in the E. Craig Wall Sr. College of Business Administration at Coastal Carolina University and holds a J.D., cum laude, from the University of Notre Dame Law School.