Sotomayor: A Necessary Antidote to Roberts
Buried in Jeffrey Toobin’s recent profile of Supreme Court Chief Justice John Roberts is this astonishing fact:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
The recent uproar over Judge Sonia Sotomayor’s comment eight years ago that being a Latina influences her perspective as a judge has led to charges by de facto Republican spokesmen from Rush Limbaugh to Glenn Beck that she’s a “racist” for acknowledging that fact. But is it even possible that Roberts — a white man from Indiana, the privileged son of a steel company executive who went on to work, when not in the Reagan White House, as a corporate defense lawyer earning more than a million dollars per year – is not influenced by his own ethnic, gender and economic background? Is it even possible that his decades writing appellate court briefs and opinions, insulated from the actual individuals involved in the cases he’s argued and decided, moving in “a circle of professional peers [that] consisted entirely of other wealthy and accomplished lawyers,” as Toobin writes, could not have affected the way he decides cases? Would someone with the gender, race and economic background of Sotomayor — regardless of her previous statements — have similarly decided every single case that came before her in favor of the more powerful party?
Fortunately, probably not. It’s absurd to suggest that a judge comes to the bench without a lifetime of experiences — including race and gender, but many others as well — that color how she views some of the more nebulous and challenging cases that come before her.
As I wrote last week, and Adam Liptak also observed in an insightful New York Times piece on the impact of gender and race on the Supreme Court, academic studies of judicial decision-making have consistently found that female judges — many of whom likely faced gender discrimination themselves in a male-dominated legal profession — are more apt to vote in favor of plaintiffs in discrimination cases than are their male colleagues. On appeals courts, they appear to influence the male judges as well.
None of this should come as a huge surprise. As then-Sen. Barack Obama put it when Justice Roberts was nominated:
“In those five percent of hard cases, the constitutional text will not be directly on point. The languge of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.”
“In those circumstances, your decision about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.”
Noting that Roberts has “far more often used his formidable skills on behalf of the strong in opposition to the weak” — an observation that turns out to have been true of his votes on the Supreme Court as well — Obama voted against his confirmation.
With only one woman currently on the court and one racial minority — who’s turned out to be the court’s most conservative member — we’re hardly in danger of having a Supreme Court that bends over backwards to accomodate the weak, the poor or minorities at the expense of the powerful. Yet the rightward-tilt of a highly unrepresentative court makes the confirmation of Sotomayor that much more important.
Whether she had admitted it or not, her background will influence her views in that five percent of cases where empathy for the plaintiff is even relevant. That doesn’t mean she’ll always rule in their favor in those cases, and as I’ve noted before, even in some extremely sympathetic cases she has not. But judges are human beings, whose rulings involve and affect other people. What a sad day it would be if this country were to revert to the ideas of a century ago — when blacks, women and the poor were excluded from voting or sitting on juries, and only wealthy white men could be trusted to exercise the wisdom, logic and impartiality required to sit on the nation’s highest court.