THE BLOG

Life Experience and Judicial Perspective

07/04/2009 05:12 am ET | Updated May 25, 2011

White men are neutral, disinterested and objective. At least, that seems to be the view of those commentators who have attacked Sonia Sotomayor for suggesting that a Latino woman might actually reach better decisions than a white man.

This business of life experience is a curious phenomenon. I wasn't at all happy with the way the Obama administration emphasized Judge Sotomayor's life story. It's an interesting story, to be sure, but it shouldn't be the focus of her nomination to serve on the Supreme Court of the United States. The focus instead should be on her intellectual ability, her judicial philosophy, and the nature and quality of her legal experience. But life experience isn't irrelevant.

Of course, judges strive to be neutral, detached and objective. Most of the time, they do a pretty good job of it. When there are governing precedents or a relatively clear text, they strive to follow the "law." They are trained to value consistency, predictability and intellectual integrity, and for the most part they do.

The Justices of the Supreme Court, though, have a particularly hard time of it. Unlike most courts, the Supreme Court has discretionary jurisdiction. It hears only a very small percentage of the cases for which review is sought. It hears only the most difficult cases. What are the most difficult cases? Most often, they are the ones in which there is no governing precedent, no clear text, and no "right" answer. That is why they are difficult.

In such circumstances, the Justices often fall back on considerations that aren't neatly captured by simplistic conceptions of the "law." In order to decide difficult cases, they often have to fall back on their judicial philosophy, their view of the appropriate role of courts, their theories of interpretation, and their life experience. In difficult cases, how they understand the "law" often turns on how they understand the world.

According to some commentators, white men apparently have no problem with this, because their life experiences are seen as the norm against which all others must be measured. This way of looking at things is no doubt a challenge for African-American Justices, such as Thurgood Marshall and Clarence Thomas, who have had quite different life experiences than, say, John Roberts and Stephen Breyer. Similarly, women Justices, such as Sandra Day O'Connor and Ruth Bader Ginsburg, are challenged, because they have had quite different life experiences than, say, Samuel Alito and Harry Blackmun. Indeed, even white men - astonishingly - have different life experiences from one another. Catholic Justices, for example, such as William Brennan and Antonin Scalia, have had different life experiences than, say, David Souter (a Protestant) and Arthur Goldberg (a Jew).

Do the "abnormal" life experiences of Justices like Marshall, Thomas, O'Connor, Ginsburg, Brennan and Scalia affect their approaches to the law? You bet they do. As African-Americans, Justices Marshall and Thomas respond through the filter of their life experiences to a range of legal issues, such as affirmative action and cross-burning. As women, Justices O'Connor and Ginsburg respond through the filter of their very different life experiences to a different range of issues, such as sex discrimination and rape. And as Catholics, Justices Brennan and Scalia respond through the filter of their life experiences to a still different set of issues, such as school prayer and abortion.

It is important to note, however, that although these life experiences may affect the perspectives of the Justices, they do not always affect them in the same way. Thurgood Marshall and Clarence Thomas, for example, have taken diametrically opposed positions on affirmative action. William Brennan and Antonin Scalia have taken diametrically opposed positions on abortion. Marshall's experience led him to see affirmative action as necessary to rectify centuries of racial discrimination; Thomas's experience caused him to see affirmative action as perpetuating racial prejudice. Brennan's experience caused him to see abortion through the lens of the separation of church and state; Scalia's experience led him to see abortion in part through the lens of the state's interest in preserving potential human life.

Of course, we are all the product of our life experience. I agree with Dick Cheney about almost nothing, but as fathers of lesbian daughters we both support gay marriage. Our common experience has informed and deepened our understanding of the world. The Justices of the Supreme Court are no different. They, too, draw upon their life experience when the "law," narrowly defined, does not dictate a decision. Faced with the challenge of defining such fundamental concepts as justice, equality, decency, privacy, and freedom, it would be hard to do otherwise. This goes for white male Protestants every bit as much as for Latino female Catholics.

Might Sonia Sotomayor draw upon her experience as a Latino woman when the precedents and the law are unclear -- just as Clarence Thomas draws upon his African-American heritage, Felix Frankfurter drew upon his Jewish background, and Samuel Alito draws upon his family's immigrant history? You bet she will. Will this make her a better Justice than a white man? It all depends on what she's learned from her experience.