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Michael J. O'Neil

Michael J. O'Neil

Posted: June 9, 2009 10:18 AM

Diversity, Perspective and the Supreme Court


Many years ago, I was elected foreman of a jury in a civil case. My experience taught me the greater collective wisdom we get when diverse perspectives are brought to bear on a legal judgment. I was, at the time, a professor in my late twenties. The jury was a diverse lot. There was one particular moment in the course of jury deliberation where the value of this diversity was shown vividly. The case involved a contract dispute in a construction case. Some jury members were concerned about the lack of perfection in some of the paperwork supporting a particular claim. One juror, a middle-aged woman with a high school education, observed:

My husband is in the construction business. The niceties of paperwork are not always observed on a job site. If a steel beam is needed on the construction site, the foreman is not going to call a lawyer or worry about paperwork. He will call the supplier and tell him to 'get that f***ing beam down to my site today!

This was practical insight into the actual practices of the construction industry that neither my PhD nor my Ivy League degrees would ever have afforded me. That particular bit of practical wisdom was not a call to ignore contract law (which as any attorney knows does not require that all agreements be in writing), but rather it provided useful insight into typical practices in that industry that a less diverse jury might well have missed.

It is nonsense to argue that anyone's experiences do not influence the way they see their world. They all do. Nor is any one perspective superior to any other. When Judge Sotomayor argued that a female Latina judge's perspectives might be superior to that of a white male judge, she overstated the case. But the vast majority of judges have historically been white, old, relatively wealthy, and male. And historically there has been a tendency to equate the perspectives of this narrowly constructed group with "objective" views of the law. It is that assumption that is bogus.

No group's experiences have a lock on wisdom. But, as my jury experience taught me, there is a greater collective wisdom in decisions that are based on the widest possible range of experiences.

Few societal institutions have historically been more uniformly white, male, and privileged than the United States Supreme Court. Judge Sotomayor's different life experiences will serve to improve its collective judgment, not because her perspectives are inherently more valid than those of a white male, but because such perspectives have been historically all but missing on that body. The Court has had 110 justices, including not a single Hispanic.

Should justices follow the law and not be guided by their gender or ethnicity? Without question. But if there was a single "right answer" to most significant legal questions, legal scholars would agree -- with unanimity -- on all significant legal questions. This is clearly not the case. Neither race, gender, nor any other demographic attribute should be determinative in any legal judgment. But to assert that one's life experiences do not play a role in how facts are assessed is to ignore reality. And the accusation, given the historical composition of the Court, implicitly suggests that the only "objective" perspective is that of relatively rich, white, old males. It is, by this perspective, every other group whose judgments are biased.

Let those who argue that race does not matter consider how they would feel arguing before a Court comprised of nine justices, all racial minorities. They might quickly -- and viscerally -- conclude that race matters quite a bit. (Indeed, many of the same conservative pundits who have objected to Sotomayor's now-famous comments have frequently complained about federal cases being tried in the District of Columbia, due to its predominately black composition. If race does not matter, this should be of no concern). And if you don't believe that gender matters in how we view the world, test it with a brief breakfast conversation with your spouse on almost any gender-related topic.

The arguments for the value of diversity on the Supreme Court can be extended to many other attributes other than race and gender. Experience as a trial court judge, which Sotomayor has, could help bolster the Court's understanding of how lower courts actually operate. But there are other attributes that one might hope to see represented in future appointments. Experience as an elected official could provide a useful political perspective. And youth seems sorely underrepresented on the Court. Since age does impart some wisdom, a certain collective maturity in the Court would seem warranted. But need this desire preclude the appointment of a solitary justice under 50? Especially on a Court whose current average age is a few months shy of 70. That's not much age diversity.

Apart from the diversity in perspective that comes with the appointment of a Hispanic justice, it serves another significant purpose. We are all taught about how the law is supposed to serve us all. The Supreme Court is a revered institution, for many the symbol of our entire legal system. What sort of symbolic message is their to the nation's largest minority that not a single member of their ethnicity has ever served on the nation's highest court?

Legitimate concerns can be raised about Sotomayor's ruling in the New Haven firefighters case (Ricci v. DeStefano). It is hard not to sympathize with the mostly white (and one Hispanic) fire fighters who passed a city test in good faith only to see the results thrown out by the City after no black firefighters qualified for promotion under this particular test, unlike previous city tests. The City, fearful of losing a civil rights lawsuit, discarded the results of the test. And a lower court upheld the City's action in doing this. But Sotomayor did not act alone here; she was a member of a unanimous panel of appellate judges who decided not to overrule the lower court ruling. And the judicial panel did not require that the test be thrown out; they merely affirmed the right of the City to do so.

The hypocrisy of many of her critics here is palpable. These are the same critics who pillory "activist judges" who overrule the actions of "democratically elected" officials. They argue that such officials should be granted wide leeway in setting public policy and not be second-guessed by "unelected judges." Sotomayor did not overrule New Haven officials' action. Her ruling let their actions stand.

Thus, these were clearly not the actions of an "activist" judge. Quite the opposite.

Apparently conservative critics do favor activist judges -- they just want them to be activist selectively.