Supreme Court Justice, Sonia Sotomayor, delivered a speech in 2001 on the role one’s identity plays in making judgments. The transcript of this speech was published in the Politics section of the May 15th issue of the New York Times online. The speech was largely about equality and minority representation in the judiciary, and how increasing minority representation will undoubtedly change how cases are decided. Her thesis was that the individual experiences of people, specifically those who make up minorities, because of their different perspectives from their positions within the society, affects the way they see the issues they deal with and necessarily will result in different judgments. Sotomayor’s beliefs were echoed and expanded on in Linda Martin Alcoff’s article, Sotomayor’s Reasoning, in the March, 2010 issue of “The Southern Journal of Philosophy.” There can be little doubt that experiences and perspectives leave an indelible mark in a person’s psyche and affects how they interpret their environment, situations, issues, and no two people can possibly see a complex problem and interpret each of the components with exactly the same. While this may be a fact, some believe that to accept this position threatens the idea that there is a truly objective measure of justice, and is why merely giving voice to this fact can be seen as undermining the idea of justice in a way that might make many believe that justice is purely subjective, arbitrary, and grounded in nothing more than another’s beliefs, and could result in a less civil society as the rule of law cannot have been based on a universal and objective sense of justice.
Sotomayor pointed out the changes that were already happening in court rulings as a result of increasing numbers of women judges, specifically in the arenas of family law and domestic abuse. One could easily argue that her speech was a criticism of objectivity in general by denying its existence with her use of the quote, “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” by Professor Martha Minnow, and her stated acceptance that the experiences of a person affects their decisions. Sotomayor referenced a position held by Justice Sandra Day O’Connor that states, “…a wise old man and wise old woman will reach the same conclusion in deciding cases.” The rebuttal of O’Connor’s sentiment, which very nearly kept her from having her appointment to the Supreme Court confirmed by the Senate, was, “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.” This statement by Sotomayor resulted in a firestorm in the world of politics and the press, and during her confirmation hearings made the decision to recant that statement. That she qualified her position by noting that not only are there variations between groups, there are wide variations within groups, and used Justice Clarence Thomas, a conservative leaning African-American as an example of just how extensive within-group variations can be.
Linda Martin Alcoff addresses the concerns of Sotomayor’s critics who feel that identity must not play a role in judging, and fear that an acceptance of views based on identity based experiences will lead to partisan identity politics. This fear stems from the critics’ belief that identity groups discard concepts of justice and begin political debates and arguments with their self-interested conclusions already firmly fixed to achieve a beneficial end for themselves, and are not approaching disagreement with the goal of fairness or justice. Alcoff goes on to show how identity, regardless of its content, has a subconscious affect on how people behave by citing various scientific studies and experiments. These various studies show that if snap-decisions, also called “thin-slicing” are based on prior knowledge, experiences and perspectives then it becomes possible to make changes to those variables in a way that future generations’ decisions and judgments will differ from those of prior generations. This is important because people will believe, for example, that they do not treat others differently based on color, but the experiments show that their actions do not agree with their belief. Alcoff asserts that learning one’s beliefs and behaviors do not agree with each other can have, “transformative effects on our motivations and modes of attentiveness” (131).
Alcoff closes her article by explaining Hans-Georg Gadamer’s concept of the hermeneutic horizon. Hermeneutic is a fancy philosophical way of saying interpretation. The horizon is explained as, “a substantive, perspectival location from which the individual looks out at the world; thus it is…in constant motion both temporally and spatially” (135). The idea is that where a person is physically, and within the social groups they are a part of, and the time at which something is perceived or experienced, makes a difference. If this view is accepted, and it is further accepted that no two people can occupy the exact same hermeneutic horizon, then it must be accepted that interpretation of events and circumstances must vary between individuals and groups.
While both Sotomayor and Alcoff point out the role identity plays in reasoning and reaching conclusions, and they both address to varying degrees what shapes ones identity, what is missing is an explanation of right reasoning or good judgment. The ideal of justice requires both. A critic interested in seeing that legal institutions seek justice will need reassurance that justice is not sacrificed by the role identity plays in adjudicating disputes, and the knowledge or belief that social identity affects adjudication needs amelioration. A civil society, especially a democratic one based on traditional western thought, needs to believe that justice is attainable within its legal system.
While it is understood that the focus of their arguments was to identify the role identity does play, and not to rectify the disconnect between the commonly understood belief that knowledge and experiences shape reasoning and judgment, and the also commonly understood desire for blind, objective justice, it is important to look at how their arguments may be used this way. Sotomayor lent much credibility to the idea that how people and societies understand justice is constantly changing. By pointing out the various changes in law resulting from the women’s suffrage movement and the civil rights movement, she shows that the justices who had opposed these changes over hundreds of years did not have a monopoly on the meaning of justice. This signifies that, generally, when it comes to questions of justice, regardless of their belief in justice and their goal of seeing that justice is served, old white men in robes and wigs were either wrong in their interpretation or that justice itself changes, and not just people’s understanding of what is just and unjust. Providing, for the sake of the critics, that justice is an ideal that does not change, it becomes necessary to explore how the understanding of justice has changed, arguably for the better.
As Sotomayor pointed out in her speech, the most profound changes to how justice is understood by society have taken place in the legal system and were spearheaded by minorities. This indicates that there is a possibility that the broader the experiences and the more empathetic one is to those who have experienced what a judge has not experienced, the closer the system gets to realizing and incorporating “true justice”. This tactic would require the critics to acknowledge that judges and people in general are always fallible as the result of their lack of knowledge and experiences, and that the search for justice is just that, a search; a striving for a currently unrealizable ideal. It further requires the acknowledgment that the only practical way to broaden the experience and empathy, in the interest of justice, is to involve more diversity into the judiciary. Treating the conflict between the realities of human life and the search for an objective justice in this manner does not deny that there is, or may be, such a thing, but serves as a clarion call to diversity in the interests of getting closer to the ideal of justice that people have such a strong desire for.
Personal Comments & Observations
I remember the controversy over Sonia Sotomayor’s comment fairly well, but what I don’t remember hearing was others aggressively coming to her defense. I also remember thinking at the time that her comment was poorly phrased and warranted the criticism, but there was no way she could have meant exactly what she said, though if so, she should not be confirmed. What I did not do, however, was track down the speech in an attempt to gain context for the comment. Reading her speech just proves that context is vitally important. I still hold that the comment, on its face, was not just impolitic, but wrong. There is no way, after examining the entirety of the speech, that anyone can reasonably claim that she honestly believed that merely being Latina put her into a better position to determine what is and is not just in all possible disputes.
Considering the importance of context, the source of criticism levied against Sotomayor for her comments, and the valid concerns held by the critics, I find it odd that Alcoff’s piece did not address the idea of justice. While she made a great argument that people’s knowledge, experiences, and perspectives from within society affect their interpretations, I’m not sure the argument was very relevant to the concerns. Alcoff made a case for what I believe most people already know, at least intuitively. If there are any arguments that both support the ideal of justice, or at least what should count as acceptable judgment, in a civil society while incorporating the facts that there will be different interpretations at some level, I’d love to know of it. A quick search on the library database and Google scholar was fruitless.
I think one important criticism of the perceived status quo that was missing from the speech and Alcoff’s response was the fact that there are already stated interpretive preferences by the Supreme Court justices. An exploration into what leads a judge to apply a specific type of frame to their interpretation of the U.S. Constitution, whether contextualist, literalist, or framer’s intentions, might have been somewhat effective. This could have forced the critics to acknowledge that the interpretive problems they have with justice are already present to some degree, and the problem they have with allowing, for example, Sotomayor’s or Thomas’, or O’Connor’s interpretations, may be based to some degree on fear of “other” and not merely on their concerns that differing interpretations are an inherent risk to the concept of justice.
Alcoff, Linda Martín. "SOTOMAYOR'S REASONING." The Southern Journal of Philosophy. Volume 48. Issue 1. (2010): 122-138. Print.
Sotomayor, Sonia. "Lecture:‘A Latina Judge’s Voice’." The New York Times. May 15 (2009). Print.