According to Judge Sonia Sotomayor, biography matters. President Obama’s nominee for the Supreme Court believes a person’s gender, ethnic background and upbringing will inevitably affect how he or she interprets the law.
She is absolutely correct.
The jurisprudence of Clarence Thomas is inescapably informed by his personal history, both as a black man and as someone who lifted himself out of poverty. Likewise, the rulings of Antonin Scalia are informed, even if subconsciously, by his strict Catholicism. Chief Justice John Roberts grew up as the son of a Bethlehem Steel executive, an upbringing that at some level had to color his outlook on issues such as management-labor disputes.
After all, Thomas, Scalia and Roberts are human, and we do not stop being human when we don a judge’s robe. Furthermore, the law is not a mathematical construct. Two plus two always equals four no matter who adds it up, but the law is a human construct, subject to human interpretation. So it matters which human does the interpreting.
In a 2001 speech, Sotomayor made the same point, noting that “there can never be a universal definition of wise.” Then came the sentence that opponents want to hang around her neck:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Read that carefully. Sotomayor expresses hope that her life experience would make her a better judge than someone who did not have that same experience. There’s nothing controversial in that thought, as the example of Sandra Day O’Connor demonstrates.
In 1981, O’Connor was nominated to the Supreme Court by Ronald Reagan, in part to honor a campaign pledge to name a woman to the court. (Apparently, he saw wisdom in diversity).
Part of O’Connor’s appeal was her biography. She had grown up on an Arizona ranch and had political experience as majority leader in the state Senate. As a woman, she was also a legal pioneer of sorts. After she graduated third in her class at Stanford Law in 1952, no California law firm would hire her (although one did offer her a job as a legal secretary.)
In 1982, soon after joining the Supreme Court, O’Connor wrote the majority opinion in “Mississippi University for Women et. al v. Hogan.” The ruling, which held that the public university could not bar men from enrolling in its nursing program, might seem obvious today, but a quarter-century ago it was not. It came in a narrow 5-4 ruling, with O’Connor casting the deciding vote.
In the opinion, you can hear O’Connor’s gender and biography speaking.
The law, she writes, “must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.”
And if the objective of a law “is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.”
Almost two decades later, in her 2001 speech, Sotomayor said she agrees that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” She strives for “constant and complete vigilance in checking my assumptions, presumptions and perspectives.”
However, she also acknowledged that is a goal to be aspired to but never achieved by mere mortals.
The Founding Fathers knew that as well. If they believed it possible for a judge to rule solely on the basis of written law, unaffected by personal background, history, experience, etc., we would need only one such wise judge on the Supreme Court, just as baseball requires only one umpire for the simple duty of calling balls and strikes.
Instead, the original Supreme Court convened with six members, a number that has since grown to nine. From the beginning, our Founding Fathers understood that court interpretations are just that, interpretations, and that no single person can overcome their own biases. Biography matters, and the best interpretations are those created by people with disparate backgrounds and life experience.
It’s the nearest we can get to wisdom.
UPDATE: Over at Washington Monthly, Hilzoy tackles the Ricci v. DeStefano firefighter case out of New Haven, involving race and promotions. Basically, Hilzoy writes that Sotomayor and the other appellate judges on the panel followed existing law and precedent in that case, even if that existing law and precedent did not produce the outcome that many would want.
In other words, Sotomayor did not act as an “activist judge” who rewrote the law to reach a desired outcome. That should make her the sort of judge that conservatives say they want.
Except, of course, not.
Also, conservative columnist Rod Dreher, having now read Sotomayor’s 2001 speech in context, withdraws his earlier criticism of the judge and admits he was wrong.