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.
Works
Cited
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.
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