“We the People...in order to...Establish Justice”

The first U.S. Supreme Court consisted of six rich white men, three of them named John and two James. The sixth was Massachusetts’s own William Cushing (shown here, courtesy of the Supreme Court Historical Society). President George Washington chose those men not just for their judicial wisdom but for their diversity. In other words, they represented the rich white men of every region.

I think we can all agree that, despite their geographic breadth, those men shared unexamined assumptions and convictions on many legal, constitutional, and social questions of the day. Poor, black, Native, and female Americans had quite different experiences, and different outlooks. In fact, we might even agree that a poor, black, Native American, or female justice would have brought the first court a better sense of justice as we understand it than six men from the young nation’s elite.

The current debate over the nomination of Judge Sonia Sotomayor to that court is focusing in part on whether there’s still a difference of perspective between rich white men and other Americans. In 2001, Sotomayor delivered a public lecture that touched on this point. The whole text has been reprinted in the New York Times, though a lot of commentators have preferred to quote (or misquote) a single sentence. The passage starts this way:

Justice [Sandra Day] 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 [Judith] Resnik attributes that line to Supreme Court Justice Coyle.

Caring about the correct attribution of quotations! Already I like her.

Contra this transcript, the actual attribution should be to the late Minnesota Supreme Court Justice M. Jeanne Coyne. In her remarks on joining the Supreme Court in 1993, Justice Ruth Bader Ginsburg cited O’Connor quoting Coyne. Ginsburg repeated the line again this year, but she added: “But there are perceptions that we have because we are women. It’s a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive.”

And O’Connor just told Publishers Weekly:

I was terribly disappointed when I retired in 2006 not to be replaced by a woman. We have to remember that slightly more than 50 percent of us in this country have two X chromosomes and I think it doesn’t hurt to look at our national institutions and see women represented. I don’t think two females on the Supreme Court is enough, but it is certainly better than one.

In sum, though Ginsburg and O’Connor quote Coyne, they don’t agree that American men and women share the same experiences, perceptions, or judgments. They don’t agree that a court consisting almost entirely of men can represent the whole country as well as if that group contained more than one woman.

In her speech, Sotomayor agreed with O’Connor and Ginsburg, and described her different perspective arising not just from being a woman, but also from being a Puerto Rican:

I am also not so sure that I agree with the statement. First, as Professor Martha Minow 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 [Benjamin] 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 [Stephen L.] 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 [Miriam Goldman] 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.

People seeking a reason to oppose Sotomayor’s nomination have jumped on the adjective “Latina” and ignored the adjective “wise.” Wisdom consists in large part of gaining perspective through experience and empathy, and that “takes time and effort.”

Let’s consider Chief Justice John Roberts, the youngest member of the current Supreme Court—also younger than Sotomayor by half a year. He grew up within the nation’s elite: his father an executive, his education at an all-male private school which he argued should remain all-male. Though he and Sotomayor (and the President who nominated her) went to Ivy League universities and law schools, thanks to our modern meritocracy, that was the first time Roberts’s life paralleled that of a poor Puerto Rican girl from the Bronx.

Does Roberts’s background reflect his judicial decisions? Earlier this month Jeffrey Toobin wrote in The New Yorker:

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.

Every major case. Roberts appears far more predictable, and his decisions, whatever their reasoning, far more reflective of his class background, than we can say for Sotomayor.

Demographically, except for being Catholic, Roberts would have fit right into the first Supreme Court—he even has the most popular first name. Sotomayor clearly wouldn’t have. But a non-British woman from a poor family would surely have broadened that court’s outlook. It would most likely have, as I argued above, given that court a stronger sense of true justice.

And why wouldn’t the same apply to today’s Supreme Court? The only way the justices’ backgrounds wouldn’t affect their perspectives would be if growing up non-white, female, and poor in twentieth-century America was much the same as growing up white, male, and rich. I’d like to see someone try to argue that case.