If you have paid any attention to reports of Justice Sotomayor's visit to Chicago, you might come away with the impression that the big take-away point from her time there was her advice to students to relax more. For the record, she did say that. But she said more. A lot more.
Three of her responses caught my attention. First, to the question whether she had a special role or responsibility on the Court due to her race, ethnicity, and/or gender, she conceded that she thought she "ha[s] a special role on the Court, but not in the way that you think.” She posed her answer this way because, I suspect, she was reacting to the conventional criticism of judicial diversity. This is a criticism that equates judicial diversity with judicial outcomes. This is also a straw man. The argument is not that a judge should be appointed because she will consistently uphold a particular conclusion irrespective of anything else. Just in case, Justice Sotomayor emphasized that shed does not "come to the process as a woman of color, saying that I have to come to a decision that will help a specific group of people." Rather, the point is that a diverse judiciary is needed because background, context, and yes, race and gender, affects how a judge sees the world, which in turn affects how a judge rules in a particular case.
Justice Sotomayor gave as an example the Chief Justice's position in the race cases. This is a position that argues for strict colorblindness as a constitutional principle. According to the Chief Justice's oft-cited words, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This is almost silly to many people. Much more diplomatically, Justice Sotomayor called this approach “too simple.”
This discussion connects to the second point. According to Justice Scalia, the Court must consider the original meaning of the Constitution as intended by the founding generation. Justice Sotomayor did not say much on this topic, though she did say that she was unsure about how helpful intentionalism was. This reminded me of the best speech I have ever read on the subject:
It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it. It was what they said that was adopted by the people, not what they were ashamed or afraid to say, and really omitted to say. Bear in mind, also, and the fact is an important one, that the framers of the Constitution sat with doors closed, and that this was done purposely, that nothing but the result of their labours should be seen, and that that result should be judged of by the people free from any of the bias shown in the debates.
This is from Frederick Douglass' speech in Glasgow. Moments later, he asked: "What will the people of America a hundred years hence care about the intentions of the scriveners who wrote the Constitution? These men are already gone from us, and in the course of nature were expected to go from us. They were for a generation, but the Constitution is for ages."
Go back to the Chief Justice's simplistic approach on race, and Justice Scalia's preferred interpretive approach. You might be curious: how does intentionalism inform our understanding of the Reconstruction Amendments? According to Eric Foner, leading historian of the period, "there is something refreshingly naive, almost quaint, in the idea that any text, including the Constitution, possesses a single, easily ascertainable, objective meaning." He continues:
Quite frankly, while as a citizen it is very important to me how the nine members of the Supreme Court understand the original intent of the Thirteenth Amendment or any other part of the Constitution, as a historian, I have no interest in their judgment. The Justices have no special expertise in examining historical questions. Indeed, if you look at recent decisions relating to racial inequality, you must conclude that the majority of the Justices have no real understanding of the history of racism in America. They view racism as a matter of individual prejudice, not a long-established, structural feature of American society.
Here's the question the conservative justices must answer: did the Reconstruction Congress seek to enshrine a colorblind ideal? Better question: do the race opinions of our generation, beginning with City of Richmond v. Croson, even attempt to wrestle with this difficult question? The answer is no. What does that tell us about originalism as a political project rather than a constitutional one?
The third reaction takes me back to the first. Recall that Justice Sotomayor thought that she "ha[s] a special role on the Court, but not in the way that you think.” What she meant by this was that she was a role model for Latin@s. More specifically, she felt that her appointment gave people of color, and not only Latin@s, “a sense of belonging” towards the Court. She offered some proof: since her appointment, there has been “a tremendous uptick” in the number of Latino groups visiting he Court, for example, and she makes it a priority to meet with them.
This was not to say, she made clear, that she was biased or impartial towards those groups. “I am a justice," she underscored, "committed to the rule of law.” This is no doubt a remnant of all the silliness that arose during her confirmation hearings. But really, is there any other kind of justice? Or put differently, why is it that only the justices of color are the ones who could possibly be biased and impartial in any way?
A final point, almost a throw-away, also caught my eye. Justice Sotomayor stated that public opinion played no role in her rulings. I suspect that's because the rule of law allows for no such thing. And yet, she also conceded that in most cases, the Court is right with the public. “On the vast majority of cases,” she said, “I bet we’re right with them.”
Tell it to the political scientist. They have known that for quite some time.
Which makes me wonder, if the Court is right with the public in most cases, what does that tell us about the so-called counter-majoritarian difficulty? Why should we pay as much attention to the power of judicial review as we do?
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