@Jaxk—Sure, Supreme Court decisions should be based on legal interpretation. I was just trying to argue two things from the generally accepted thesis that everyone has some sort of bias: first, that we should address it directly (and not say they don’t); second, the fact that the Supreme Court votes are never consensus—and these judges are the presiding experts of the Constitution—indicates that either there isn’t some absolute “objective” interpretation, or else we’ve never appointed nine justices who all “see” it… But talking in ways of “objective” and “subjective” as if we can separate out who “sees” it from who doesn’t seems dangerous to me, especially when the justices, behind their remarkable intelligence and legal study, are as human as the rest of us. And given how Supreme Court decisions have changed over time (especially with respect to gender and racial issues,) I don’t think we can say the Constitution’s legality is acting in a vacuum.
Here is an excerpt from the article in which Sotomayor made that exact statement (although I guess she has repeated the sentiment on other occasions.) source: New York Times reprinting of the lecture.
That one statement does seem odd out of context, but within the larger speech the “better” judgment to which she refers seems to specifically regard issues of racial and gender prejudice. At least to me, it seems like she is mostly trying to highlight the fact that she will have a different bias from other judges, but that this bias is not necessarily a bad thing, and that she will strive like the rest of them to see others’ perspectives. I don’t think that sentiment is so controversial.
Sorry it makes this post so long, but I was hesitant to cut up the paragraphs too much. So instead, I bolded parts I thought were most salient. I also italicized the specific quote.
“In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.
“Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
“However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
” . . . Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”
Composing members:
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Composing members:
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