A Common Touch Needed on the Supreme Court

Sotomayor's nomination comes not a minute too soon, writes Louis Caldera, for the Supreme Court suffers from a lack of empathy and imagination for the lives of ordinary Americans.

Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Wednesday July 15, 2009, before the Senate Judiciary Committee. (AP/Charles Dharapak)
Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Wednesday July 15, 2009, before the Senate Judiciary Committee. (AP/Charles Dharapak)

I will never forget the way former Supreme Court Justice Sandra Day O’Connor dismissed the votes of the 19,000 people in Palm Beach County, Florida who inadvertently double-voted in the 2004 presidential contest because of the notoriously confusing “butterfly” ballot. An exasperated, “It couldn’t be clearer,” was her take on the ballot instructions to voters.

To my mind, Justice O’Connor’s apparent disdain for those who lacked her legal sophistication and education was thoughtless and insulting. I couldn’t help thinking of my mother—an 83-year-old immigrant from Mexico who became a citizen in 1993, speaks English, reads the newspaper every day, and cares deeply about this country and what its future holds for her grandchildren. Yet she can become easily frustrated by things that are disorienting to her, and had she been a Florida voter, she might well have been flustered by a poorly designed ballot—all the more so because she takes her responsibility to vote so seriously.

How glib and easy it seemed for Justice O’Connor to write off the votes and rights of individuals like my mother, people who faced obstacles that Justice O’Connor could not easily imagine. Since Justice O’Connor left the bench in 2006, the members of the court’s emerging 5-4 conservative majority have shown themselves to be even more strikingly out of touch with people whose lives are directly affected by their decisions, particularly those whose life stories are least like their own.

In allowing Indiana’s voter ID law to stand, despite the Constitution’s promise of equal protection under the law, the majority found it easy to dismiss the heavy burdens the new scheme would place on indigent, elderly, or disabled voters. According to Justice Antonin Scalia, the costs and substantial inconveniences placed by the scheme on certain easily identifiable groups of voters amounted to no more than “the same burden for everyone.”

Or consider the court’s recent decision on desegregation. In rejecting the brave efforts of school authorities to voluntarily desegregate schools in districts where large numbers of children are growing up in racial and socio-economic isolation, Chief Justice John Roberts unhelpfully concluded with the tired tautology that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

And in circumscribing the ability of municipalities to ensure that public hiring and promotion exams fairly produce the best candidates, the court’s conservative majority showed complete disregard for the historical experience—not to mention an Act of Congress—which understands that prohibitions against overt racial discrimination alone are insufficient when governmental policies with disparate effects are allowed to operate.

Into this mix comes Sonia Sotomayor’s nomination to be the first Hispanic and only third woman to serve on the Supreme Court. Her nomination comes not a minute too soon, for the Supreme Court suffers from both a lack of empathy and imagination when it comes to the lives of ordinary Americans, and a callous disregard for the laws intended to protect those same Americans. Yes, she’ll add welcome gender diversity. But as a woman of humble roots, raised by working class parents from Puerto Rico whose native language was Spanish, she also adds welcome ethnic and socio-economic diversity.

And she promises to be a very different kind of female jurist than Justice O’Connor. Supreme Court nominee Sotomayor seems far more capable of putting herself in the shoes of a broader swath of society when considering the arguments the court is called to weigh and the impacts of its decisions.

Of the many talents that a Justice Sotomayor would bring to the court, one of the most important is likely to be her ability to articulate a first-hand appreciation for how judicial rulings affect ordinary Americans, particularly the powerless and disenfranchised. It is clear from Sotomayor’s speeches, writings, and opinions that she has not forgotten the struggles that she and others like her had to overcome to make something of their lives. She appreciates that for many poor people and people of color those struggles are still a part of daily life, and that when judges squeeze the life out of laws intended to protect such people, they deny these Americans the equal dignity our Constitution demands.

No doubt this because her life story is closer to that experience, and it is one she finds no reason to deny. For that authenticity, we should be grateful.

While the conventional wisdom is that her appointment won’t do much to stop the court’s drift to the right, particularly on matters related to race and poverty, that line of thinking ignores the real possibility that Sotomayor, who has won the admiration of conservative colleagues on the Second Circuit, will indeed be able to influence her fellow Justices. Though it will take time, a confirmed Justice Sotomayor can perhaps begin to move the Court’s majority beyond its cavalierly academic consideration of matters of race and poverty.

When she takes her seat her seat on the court, I will once again be thinking of my mother, celebrating a moment that lifts up and vindicates her rights, dignity, and struggles and those of many, many others like her.

Louis Caldera is a Senior Fellow at the Center for American Progress.

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