1. Introduction
On February 28, 2025, in a letter and post on Linkedin, the New Mexico Supreme Court (NMSC) publicly declared its support for “DEI.” This post explores why that is a problem. A copy of the NMSC’s letter is below.
First, the definition of DEI. According to Merriam-Webster, DEI is an acronym for diversity, equity, and inclusion. It is defined as: “a set of values and related policies and practices focused on establishing a group culture of equitable and inclusive treatment and on attracting and retaining a diverse group of participants, including people who have historically been excluded or discriminated against.” Merriam-Webster
Merriam-Webster goes this example: “Through our continued focus on diversity, equity and inclusion, we are increasing the number of female attorneys, people of color, and members of the LGBTQ+ community in the leadership pipeline,” quoting, Phillip G. Hampton, II, in The Madison-St. Clair (Illinois) Record.
In short, DEI is the perceived need to increase the participation of certain marginalized groups in society. Importantly, this post does not argue for, or against, DEI initiatives. Rather, it argues it is fundamentally improper for the courts to attempt to implement such initiatives, given the court’s role as impartial adjudicators.
2. “DEI” is a political initiative and courts should remain nonpolitical
Legally-speaking, there is no body of “DEI law.” There are no “DEI statutes” nor “DEI case law.” To the extent there is, it is scattered and of recent creation. That’s because “DEI” is a political invention. While there have been anti-discrimination laws since the 1964 Civil Rights Act, DEI initiatives are different. The 1964 Civil Rights Act outlawed discrimination in employment, public accommodations, and other public venues. DEI, on the other hand, is not anti-discrimination, it is pro-discrimination, in that it promotes discrimination in favor of certain marginalized groups that are perceived to be in need.
The fact that there is no “law” on the “books” to guide DEI intiatives betrays its recent political nature. For example, there are court cases going back hundreds of years on cattle and water easements, but nothing on DEI initiatives.
Courts have an ethical and legal obligation to avoid political questions, in fact, it is known as the “political question doctrine.” According to the Legal Information Institute at Cornell Law School, the “political question doctrine is the rule that federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue…” Although this definition specifies “federal” courts, most state courts adhere to the same principle. Cornell Law
3. DEI is regressive and is contrary to established norms of equal treatment for all.
The 14th Amendment to the US Constitution contains what is known as the Equal Protection Clause: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” US Constitution, emphasis added.
Historically and legally, the equal protection clause has ensured that two individuals are treated the same by the government and the courts, regardless of race, ethnicity, sex, or gender etc.
However, DEI uproots those historical principles and advocates for an entirely new framework: discrimination between two otherwise “equal” individuals is permissible when it is deemed permissible under DEI principles, whatever they may be. A further elaboration of the difficulty of fair implementation of DEI principles, follows immediately below.
4. If courts implement DEI initiatives, it will lead to disparate and unfair outcomes
When a student enrolls in law school, they are taught the fundamentals of law. How to read, write, and think from a legal perspective. In other words, they are taught to “think like a lawyer.” This is because the law requires a certain type of thinking. Legal thinking is rational and unemotional. It is always fixated on two things, the “facts” and the “law.”
This rigid adherence to the “facts” and “law” is vital because it helps ensure fair and impartial application of the law. All individuals are judged by the same standard, the facts of their case, and equal application of the law. Attorneys may differ on the “facts” or the “law,” but if legal analysis steps outside these two parameters, the law becomes much less predicable and runs the risk of become unfair and partial.
The problem with DEI, put most simply, is that it runs afoul of the facts and the law and quickly becomes unpredictable. Who decides what type of diversity, equity or inclusion is favorable? Does “diversity” refer to racial, economic, or geographical diversity? Why one over the other? If racial diversity, is it african-americans, hispanic-americans, native-americans, asian-americans, or arab-americans, each group of which has faced some amount of historical discrimination? Why one over the other? What amount of “equity” is permissible and under what conditions? What amount of “inclusion?” Who decides what these terms mean and under what conditions?
5. That the NMSC has seen fit to wade into a politically-charged issue like DEI speaks to its increasing political corruption.