Among the less ridiculous charges (less ridiculous, for example, than the “reverse racist” attack that Rush Limbaugh and others of his ilk have fashioned) that have been leveled against the nomination of Judge Sonia Sotomayor to replace David Souter on the Supreme Court is the suggestion that diversity should not be necessary on the highest court in the land.
The basis for the charge is the simplistic assertion that, since “justice is blind,” the result in any particular case should not turn on the specific characteristics, beliefs or experiences (the generally accepted gauges of diversity) of any individual judge.
Thus it is claimed that President Obama should not have selected Judge Sotomayor if he did so because of her gender or ethnicity. (As a woman, she would only be the third of her gender to sit on the Court and as a Latina, she would be the first of that ethnicity to do so.)
Leaving aside the fact that the nominee boasts impeccable credentials (valedictorian of her high school class, summa cum laude and Phi Beta Kappa from Princeton, and law review editor while graduating from Yale) and that she has an inspirational personal history (raised by a hard-working single parent – her immigrant mother – in a low-income part of the Bronx), this argument fails to recognize the positive effects on securing justice that diversity on the Court provides.
The responsibilities of the United States Supreme Court are primarily focused on two types of cases: statutory construction and Constitutional interpretation.
Those cases that require the Court to construe a statute benefit from diversity for many of the reasons noted below, but they are less consequential since Congress can always “correct” the Court if the Court’s construction of a particular statute was not what Congress intended.
But ever since 1803, when Chief Justice John Marshall assumed for the Court the responsibility of interpreting the Constitution, all cases that have at their core a Constitutional issue fall within the Court’s jurisdictional purview. And those Supreme Court cases that interpret the Constitution immediately become the law of the land because they literally and definitively decide what the Constitution means on a given issue or subject.
Thus the nine who sit on the Court are, in effect, law makers, even though they are bound only to be law interpreters. This seeming dichotomy of purposes, to interpret on the one hand and yet create on the other, is the basis for the claim that “activist” judges should not serve on the Court. The term is a misnomer. Supreme Court Justices are required to be activists in promoting their interpretation of the Constitution. They literally have no other option.
What makes this point difficult for many non-lawyers to understand is the inherent ambiguity in many provisions of the Constitution. The Constitution provides, for example, that Congress “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Similarly, the people shall be free to bear arms, consistent with the requirements of “a well regulated militia.”
What do these seemingly conflicting provisions mean? Is a law that allows religious icons to be displayed in public places constitutional (free exercise) or unconstitutional (establishment)? Does a law restricting private ownership of fire arms violate the constitution (right to bear arms) or support it (“well regulated militia”).
How are such laws to be interpreted consistent with the Constitution? Do a Justice’s personal experiences, characteristics and beliefs bear on the answers? Might a Justice with a strong religious identity tend to see the question of a law allowing religious icons to be displayed as justified under the “freedom of religion” clause, while one without any religious background might see that same law as unjustified under the “establishment” clause?
Might a Justice born and raised in a culture where hunting was dominant view a law that restricted gun ownership as a violation of the “right to bear arms,” while one born and raised in an environment where guns were regarded as dangerous weapons principally used by criminals might see that law as appropriate under the “well regulated militia” clause?
In each example, and in many others that could be considered, both views merit consideration, which is why diversity is necessary. A Court comprised entirely of devout evangelical or fundamentalist Christians, for example, might never even give more than passing notice to an establishment clause argument in my first example. A Court comprised entirely of former hunters might completely ignore the “well regulated militia” clause of the “right to bear arms” provision.
The more diverse the Supreme Court is in its makeup, the more likely differing interpretations will be considered on any issue that is susceptible of differing interpretations. And, as a result, the resolution of those issues will be more carefully considered by the Court as a whole.
Diversity of experience is especially significant in this regard, for the simple fact that the United States is not monolithic and its population in not homogeneous. Rather, it is a country born from diversity – of thought, of beliefs, of cultures and of traditions. It is, in this respect, less “the great melting pot,” and more a stew pot of distinct ingredients.
In that context, nine men, all Caucasians and all religious (perhaps even all Christians), are less likely to consider fully the merits of any given issue than are nine distinctly unique individuals who are a mix of men and women, Caucasians and non-Caucasians, Christians and non-Christians (and even non-believers), former prosecutors and former defense attorneys, former advocates for big business and former public interest attorneys.
Indeed, such diversity might even include some who see justice in protecting the property interests of the property owners and some who see justice in furthering the aspirations of those seeking property of their own.
In the end, there are no purely correct interpretations of the many provisions of the Constitution. There are, instead, perspectives that can guide those with the responsibility to interpret those provisions. Diversity on the Court enhances the potential for broader perspectives, and consideration of broader perspectives can only promote the realization of true justice.