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A new legal theory

In "No More Mr. Nice Guy," the New Yorker's Jeffrey Toobin looks at the world view of Chief Justice John Roberts and how it has influenced the court. Here is an excerpt (read it online at

(Chief Justice John) Roberts' hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. "Judges are like umpires," Roberts said at the time. "Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire." His jurisprudence as chief justice, Roberts said, would be characterized by "modesty and humility." After four years on the court, however, Roberts' record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the court should almost always defer to the existing power relationships in society. In every major case since he became the nation's 17th 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. Even more than (Antonin) Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

By now, Judge Sonia Sotomayor's quote is familiar and controversial. But there has been precious little context for understanding where that remark fit into her overall talk, delivered in 2001 at the University of California, Berkeley, Law School for a symposium entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." Here are a few excerpts from her own speech, "A Latina Judge's Voice," which showed the importance of diversity on the bench. (Read the full text at

I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.

• • •

America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud. That tension between "the melting pot and the salad bowl" — a recently popular metaphor used to described New York's diversity — is being hotly debated today in national discussions about affirmative action.

Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with its differences. In this time of great debate we must remember that it is not political struggles that create a Latino or Latina identity. I became a Latina by the way I love and the way I live my life. My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a Latina soul. They taught me to love being a Puertorriqueña and to love America and value its lesson that great things could be achieved if one works hard for it. But achieving success here is no easy accomplishment for Latinos or Latinas, and although that struggle did not and does not create a Latina identity, it does inspire how I live my life.

• • •

(I) accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that — it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

• • •

Let us not forget that wise men like Oliver Wendell Holmes and Justice 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) 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. … Nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown (vs. Board of Education).

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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

• • •

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I re-evaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

Toobin has a second New Yorker piece, titled "Diverse Opinions," showing how diversity has always mattered greatly in making Supreme Court picks, though how we define it has changed over our history. Here's an excerpt (read it online at

In making nominations to the Supreme Court, presidents care about diversity, which is a relatively new term for an idea that is nearly as old as the court itself. In the early days of the republic, when regional disputes were the foremost conflict of the era, nominees were generally defined by their home turfs. So presidents came to honor an informal tradition of preserving a New England seat, a Virginia seat, a Pennsylvania seat, and a New York seat on the court. In the 19th century, as a torrent of European immigrants transformed American society, religious differences took on a new significance, and presidents used Supreme Court appointments to recognize the new arrivals' growing power. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the court, and that tradition carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, and William J. Brennan Jr., occupying the chair. In 1916, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter, and Abe Fortas.

With the distance of history, this evolution looks almost inevitable.

In the New York Times Magazine, Jeffrey Rosen, a law professor at George Washington University, writes about an emerging theory of the Supreme Court's role that is neither activist nor strict constructionist. And for that matter, neither conservative nor liberal. Here is an excerpt from the essay entitled "What's a Liberal Justice Now?" (Read read the full piece at

Several scholars, including Jack Balkin, Reva Siegel and Robert Post — three law professors at Yale — have helped articulate the position now known as "democratic constitutionalism." One of its core ideas is that courts should pursue many of the same social-justice ends that the Warren Court sought to advance, only using more modest, less uniformly activist means — always acting in conjunction with progressive political movements.

Unlike the minimalists, the democratic constitutionalists don't maintain that courts should always prefer "nudges over earthquakes;" but unlike Warren Court partisans, they don't suggest that the courts are always entitled to have the first (or last) word in promoting social progress. "Decisions made by legislatures and executive officials about our rights are just as important" as judicial decisions, if not more so, Balkin and Siegel write in an introductory essay to The Constitution in 2020. …

In other words, if the Warren Court saw the Constitution as defined primarily by courts, and if the minimalists see judges as cautious followers of political movements, the democratic constitutionalists see courts and political movements as partners, influencing each other and society as a whole. Courts sometimes act boldly and sometimes cautiously. Constitutional change ultimately flows from the bottom up, not the top down (which results in "democratic constitutionalism"), but the courts play an important if subsidiary role in codifying and extending values that the American people themselves have come to embrace as fundamental (which results in "democratic constitutionalism").

This sort of approach doesn't (and shouldn't) always yield liberal results: during George W. Bush's presidency, conservative justices working in a similar mode — as partners with a conservative White House and Congress — sought to turn the Constitution decisively to the right. But as Balkin and his colleagues see it, liberal justices are supposed to champion or defer to the values that they see as expressions of the Constitution's core progressive principles — and with a progressive president and Congress, they think they can succeed.

If Judge Sonia Sotomayor is confirmed for a seat on the Supreme Court, she will be the sixth of the nine justices who are Roman Catholic. Four of the Catholics on the court are reported to be committed attenders of Mass, and they make up the court's solid conservative bloc — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The fifth Catholic, Justice Anthony Kennedy, often votes with them. There are indications that Judge Sotomayor is more like the majority of American Catholics: those who were raised in the faith and shaped by its values, but who do not attend Mass regularly and are not particularly active in religious life. Like many Americans, Judge Sotomayor may be a "cultural Catholic" — a category that could say something about her political and social attitudes. Studies have consistently shown that the 57 percent of Catholics who rarely or never attend Mass are far more liberal on political and cultural issues than those who attend regularly.

A new legal theory 06/06/09 [Last modified: Saturday, June 6, 2009 4:30am]
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