The impartial Chief Justice, on the other hand

There’s a persistent claim in the media and by pundits that the law is a set of statements from which we can impartially, if we are well-schooled and self-controlled, draw conclusions that do not in any way involve our personal beliefs and values.  Sotomayor, of course, being a woman, may not be the right sort of logic machine. 

In fact, applying the law involves both logic and something like imagination.  Interestingly, the record of the present Chief Justice reveals the role of the two in judicial decision making.

From Jeffrey Toobin in the New Yorker:

In every major case since he became the nation’s seventeenth 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 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.

What were some of the decisions of his court that involve decisions not logically following from the law?  Well, there was the Seattle case; Roberts ruled against precedent that any consideration of race counts against equal protection.  That is, the Seattle school board’s attempt at integration was as illegal as attempts at segregation. 

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Of course, history’s against him on that one, but in any case his ‘principle’ – that stopping integration will stop segregation – is a political and psychological conjecture, at best.  And in the same term:

the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations. Also that year they upheld the federal Partial Birth Abortion Ban Act, in Kennedy’s opinion, even though the Court had rejected a nearly identical law just seven years earlier. [In] the case of Ledbetter v. Goodyear, brought by a sympathetic grandmother who had been paid far less than men doing the same work at the tire company … the conservative majority, in an opinion by Alito, imposed seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits.

And also:

Roberts has been a consistent supporter of death sentences, and he wrote the Court’s opinion holding that lethal injection does not amount to the sort of cruel and unusual punishment prohibited by the Eighth Amendment.

Does this all just show that the court is packed with people who can’t follow logic?  Not exactly; what it tells us instead is that we cannot have a set of principles for right action from which we can logically deduce all the answers we need.    Human concepts do not work that way. 

Philosophers, who as a field have failed after centuries and centuries of trying to come up with necessary and sufficient conditions for just about anything, should know this.  The best discussion of it that I know of can be found in Mark Johnson’s book, Moral Imagination.   Because of our concepts and the ways we think, justices need to apply the law in ways that go beyond simple deductions.  What forms their moral imaginations is  extremely important.  As Obama has seen.  And in fact as Bush may have realized also.

Sotomayor and Standpoint Theory

Here’s a quote from Sonia Sotomayor:

“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.”

The right-wing is of course up in arms, accusing her of racism. Me, I was busy thinking “WTF? She’s a standpoint theorist? Really? That’s fascinating!”

Further research into the context of her remarks shoots down the “she’s a racist” theory, but leaves intact the possibility that she’s a standpoint theorist, at least of the sort who holds that members of certain groups may have special insights into particular issues. (Though you don’t have to be a standpoint theorist to think that.)

Those words came as part of a discussion about the importance of judicial diversity in determining race and sex discrimination cases, but they have been widely reproduced out of context.

Sonia Sotomayor

I’ve been so swamped with marking, I haven’t even had time to mention the big news: Sonia Sotomayor has been nominated to the US Supreme Court! Of course, it didn’t take long for veiled and not-so-veiled racist commentaries to start. (I think I’m especially impressed by the claim that she is a Latina single mother, despite having no children at all.) Today, however, something more interesting came out: some uncertainty about her views on reproductive rights. She hasn’t explicitly ruled on the Roe V Wade reasoning, and the worries stem from these cases:

1. In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

2. In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

3.In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

And in a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.

(2) seems like the right ruling if you care about police using excessive force, which you should. (3) are clearly the right rulings if you care about reproductive rights (even the forced childbearing advocates interviewed for the article realise that this is what pro-choice person would say). Which leaves only (1) to worry about– and it may well be that the higher court ruling made this the only judgment possible. Do any of you know more about (1) which would make this more worrying?