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.
Feminist Philosophers 
Readers of this post shouldn’t miss the two below it, which raise important issues in Sottomayor’s candidacy.
And in fairness, let me say that philosophers have been pretty good with definitions for “bachelor,” though even that’s a bit tricky. “Ummarried male human being” sounds good, though that makes male toddlers bachelors, which is odd. “Unmarried male human being of marriageable age” might be better, but then someone’s bachelor status can change with location, which seems odd.
Well, you get the idea.
Law decisions like any other realm of human behaviour depends on reason but reason as David Hume said is the slave of passions, so the best we can hope is to be humble and critical and try to do the job without pretending imparciality or totaly objectivity. To ignore this is to become dogmatic and dangerous.
As a beginning philosophy student lo those many years ago I wondered if bachelor and widower were somehow coextensive since a widower is also an unmarried male human being of marriageable age. :)
O, that’s deep, Lani. Perhaps we should do a whole post on it. :)
Actually, the ‘bachelor’ definition isn’t even all that good– a gay man in a lifelong partnership really doesn’t seem like a bachelor.
Jender, I was inclined to agree immediately, but then I’m starting to wonder. Is there a problem with calling gay men bachelors? If not, then I’m wondering whether our intuitions about the life long case are intuitions that he’s really married.
It might be interesting to do an experimental philosophy survey.
Gay or straight, a man in a lifelong partnership doesn’t sound like a bachelor to me – and I suspect many of them would resist the suggestion that that’s because they’re really married after all.
Ross, it may be impossible to track down the source of some philosophers’ intuitions on this point, and in any case, there may be limited interest in trying to uncover such intuitions. Still, some gay men and lesbians do refer to their partners as spouses and/or “husband”/”wife;” Boston marriages might be thought of as marriages in some sense. It might be that “married” suffers from the same resistance to definition as “bachelor.”
Perhaps more importantly, philosophers’ intuitions may well not match those of students, people in clothing store, etc, etc.
It’s nice to think that even the concept of a bachelor is going to be resistent to definition, but in fact it may well have a pretty precise legal definition. We might also argue that what the right wing are trying to do is to impose a legalistic definition for an otherwise someway imprecise notion. If so, it might invite a qualification of the general point I was trying to make.
I’m wondering if anyone has tried to analyse the arguments of the right in this way. It aligns quite ‘nicely’ with the original US constitutions definition of what constitutes a citizen. Surely someone has pointed out how the opposition to gay marriage is a case of the powerful trying to get their desires and practices made solely correct by definition.
JJ, I wasn’t denying that some such consider themseleves married, just that not all will – and one counter-example to a definition is enough! I agree with you on the substantive points though: sometimes you hear arguments against gay marriage where the arguer seems to be taking it as simply analytic of ‘marriage’ that it holds between a man and a woman. Well, you can use the terms as you like, of course, but then there’s a question about whether it’s a *good* term to use. (I’m reminded of Haslanger on the different kind of projects one might be engaged in when doing ‘analysis’.)
Ross, but the counter-example wasn’t to the definition; it was to my attempted explanation of Jender’s intuitions. And there one counter-example weighs much less heavily.
Still, it’s a happy fact that even “bachelor” is unruly, as it were.
Thank you for this post. I have been suspecting as much (that charges that Sotomayor is biased are based on racist and sexist assumptions), but it is great to see a concrete, researched example.
Michelle, thank you so much for moving the discussion away from the definition of bachelor, interesting though that might be.
It’s immensely frustrating that all the people worried about her don’t seem to have noticed how partisan his judgments have been.