In defense of diversity

Supreme Court benefits from varied life experiences among justices

By Peter Ianakiev

The main argument that conservatives had against Sonia Sotomayor’s nomination to the Supreme Court centered around a statement she made in 2001, where she said, “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 quotation expressed a certain liberal conception of jurisprudence, one that possesses a lot of merit, but also one that conservatives love to decry because it is inextricably tied up with the concept of diversity— a notoriously hand-wavy idea, but one that nevertheless has real importance for the Court.

Part of what Sotomayor was claiming in her infamous quote was the idea that one’s personal experiences and background play a role in how that person will interpret the Constitution and apply the law. Perhaps this is an unpleasant opinion, one that relegates the law to the status of relative opinions and interpretations, without absolute right answers. Unpleasant or not, however, it seems like a perfectly reasonable stance on the role of the judge. After all, a justice’s job is, first and foremost, to interpret the Constitution; and as we well know, there are no hard, fast, and easy rules when it comes to making sense of the document or deciding how to apply it. To deny that personal experiences shape the way justices read the Constitution is ultimately naïveté. A few examples are warranted here.

First of all, there were the Samuel Alito hearings. In the then-nominee’s own words, “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Now this is interesting—it certainly seems like Samuel Alito is saying that his own personal experiences influence the way he thinks about certain cases. However, there was no outrage about this remark when it was first made; nobody protested against it at all. Maybe even conservative justices are unable to escape their own personal histories when it comes to certain cases. Can anyone really doubt that Clarence Thomas’s experiences as someone who was a beneficiary of affirmative action, but who oftentimes suffered painfully condescending treatment at the hands of employers who did not consider him gifted enough to have gone to Yale Law based on his own merits, had some effect on his passionate opposition to such programs?

Then there are cases like Plessy v. Ferguson, which provide emotionally charged but relevant examples for this argument. It is precisely the kind of ignorance of the experiences of minorities that would allow a Supreme Court Justice like Henry Brown to write, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” I can accept that most legal and jurisprudential questions are complicated and that merely demanding diversity does little to nothing to solve them. But given that American legal history is full of examples of Supreme Court justices incapable of sympathizing with the minorities who have turned to them for help, does that not imply that policy makers should strive to create a more diverse Court, so that it could better relate to and address the grievances of the powerless who turn to it for help?

If we accept that different experiences will have an effect on one’s jurisprudence, and that being a minority or a woman necessarily means having different experiences, we can begin to understand why diversity matters. A diverse bench means justices can engage in dialogue and help each other understand where the plaintiffs are coming from. Consequently, justices are better able to sympathize with those who are standing in front of them, claiming that their rights have been violated. If more diversity on the Supreme Court leads to a more sympathetic bench that is more capable of relating to and understanding the hardships of all Americans, then how can anyone really claim to be against it?

Ultimately, then, President Obama and liberals as a whole should not abandon diversity as an ideal worthy of pursuit. When it comes to replacing the retiring John Paul Stevens, I can understand Obama not wanting to court controversy and wild-eyed accusations of racism. But I hope he continues the trend started with Sotomayor. I hope the Democrats in the Senate continue to acknowledge the function and importance of diversity on the Court. Don’t get me wrong—diversity is not the only thing that makes just Supreme Court decisions possible. After all, Supreme Court benches comprised of nine white men have handed down wise decisions on issues regarding race and gender in the past. It is certainly possible to reach across the various barriers that separate people and try to look at the world from their perspectives, even if you have never experienced what they have. I am not saying this is impossible. However, given the history of the Court, it seems obvious that it just does not happen often enough.

— Peter Ianakiev is a second-year majoring in Political Science