Complimentary blind spots

A few years back, I was listening to a colleague describe a recent trip he had taken to an island somewhere in the Caribbean. The food was delicious, the resort elegant, and the diving was suburb. But my friend expressed reservations about the natives. He said that the island people were poor, which was true, and that they were also filthy. Surprised that my open minded and normally generous colleague would make this statement, I asked on what he based this assessment. He replied that all over the island natives had left trash piled in front of and around their homes. I asked whether the island government provided its poorer residents with a trash service. He said no. I asked if the natives had cars or trucks to haul trash to a dump. Most did not. My friend got my point.

A person’s background informs his or her worldview. Although people generally can overcome prejudice when unexamined beliefs are reflected back to them through another’s eyes, all people still have blind spots. As my friend did, people make assumptions, sometimes without knowing that they’ve missed entirely facts that would have led them to form another conclusion.

The impact of a person’s upbringing and personal experience on his or her beliefs is not seriously disputed. Therefore, opponents of planned Supreme Court diversity argue instead that judges, by embracing a strict constructionist philosophy, can arrive at gender or race or anything-you-like blind decisions. See e.g., Ruth Marcus, May 13, 2009. To those opposed to selecting by design a woman justice to replace Souter, picking a woman or a Hispanic isn’t necessary. If a woman happens to be the best candidate fine, but through clear legal thinking, a group of white men can represent sufficiently the viewpoint of the 51% of our population that is female and various minorities to boot (not represent in the legislative sense, but rather approach legal analysis and debate from multiple perspectives so that all meanings that can reasonably be construed from a legal text are explored).

In his May 27, 2009 op-ed, George Will argues that justices should adopt the “jurisprudential doctrine…expressed by a certain Illinois state legislator [Obama] in a 2001 radio interview: ‘The Constitution is a charter of negative liberties. . . . It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf’”, instead of engaging in judicial activism—something Will apparently believes Sonia Sotomayor will do if her appointment is confirmed. Moreover, Will alleges that Sotomayor will adopt what he terms “the Thurgood Marshall doctrine: ‘You do what you think is right and let the law catch up.’” He implies that Sotomayor, because of her background, gender, race, or liberal bent, will act partially and improperly when adjudicating a case.

But Will and others are confusing issues. Strict construction and judicial activism are not functions of a justice’s race, gender, or political affiliations. Anyone can engage in either activity, properly or not. Strict construction, to the extent it has any merit, is essentially a doctrine favoring constitutional interpretations that do not expand the scope of governmental powers in relation to retained state and individual rights. This is not a radical idea. But it does not follow necessarily that justices should never act to protect individual rights from prejudicial government action—even if it means holding a statute unconstitutional. After all, judicial review has been widely accepted ever since Marbury v. Madison.

On the flip side, Will is right. Justices should not for personal reasons hold a statute unconstitutional without legal cause. This would be judicial activism at its worst. But his jab about the “Thurgood Marshall Doctrine” ignores the reality that before and during Justice Marshall’s life African American defendants experienced “robbery trials that lasted less than fifteen minutes [and t]he best a defense lawyer could often do was to make sure that the defendant had a pregnant wife.” Deborah L. Rhode, Letting the Law Catch Up 44 Stan. L. Rev. 1259, 1260-1261 (1992). African Americans used separate bathrooms and rode in the back of the bus. Somewhere along the way, our court and legislature failed to recognize timely injustice.

“Nearly everyone thinks that judges should sometimes invalidate unconstitutional laws.” Randy Barnett, Constitutional Cliches, 36 Cap. U.L. Rev. 493,495 (2008)(emphasis in original). Some statutes should be held unconstitutional. Most people do not feel Brown v. Board of Education was decided wrongly, for example. It’s just in grayer areas that people point fingers and call justices activists because an opinion they decided is not to the people’s liking. But this does not alter what the correct inquiry should be—did the Court get it right?

Perhaps some judges are like a colleague of Justice Frankfurter—“the kind of man whom experience passed through without stopping,” Id. at 1261, but most people are to some extent the sum of their experiences. As Ginsburg said in a recent interview, a woman would not ask, as a male justice had, whether forcing a twelve year old girl to undergo a strip search at school resulted in any harm. See Marcus. Maybe Korematsu v. U.S., 323 U.S. 214 (1944) would have been decided differently if the bench had included an Asian American or other persons with firsthand experience with racism and oppression. And the Court may have found discrimination in Feeney v. Personnel Administrator of Massachusetts, 442 U.S. 256 (1979), which held that a veteran’s employment preference plan did not discriminate unfairly against women because no harm was intended. Women and minorities know firsthand that discriminatory acts have often been characterized as being for the good of the subjugated class.

It is important to ask whether a potential justice, like Sotomayor, will decide cases properly; neither expanding improperly government’s powers nor allowing statutory requirements to supplant Constitutional liberties. And if her jurisprudence proves unsound, as some have alleged in relation to the Ricci case in particular, maybe she is not right for the job (although her record generally appears sound). But Sotomayor’s assertion (taken out of context) that as a Latina woman she might decide certain cases more wisely than a person without the benefit of her life experiences should not be a deal breaker.

Justice Scalia has explained statutory and constitutional construction well: “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Antonin Scalia as quoted in Barnett, supra, at 499-500(citation omitted). But the Court is much more likely to comprehend fully and fairly texts, and decide cases correctly, if it is composed of a diverse group of justices with complimentary blind spots.