Not that Far

Though I'm still in Mexico, I've followed some of the news in the U.S. and, thanks to YouTube, watched President Obama's speech to the NAACP and excerpts from Judge Sotomayor's confirmation hearings.

My interest in the Supreme Court is as old as any academic interest I can remember. I think it's related to the ability of the justices to apply their political convictions without thinking about political repercussions or feasibility; the decisions--and dissentions--of the Court reflect their times in a different way than do legislation or speeches by elected officials. To me, the relationship between the Court, the law, and the values and norms of American society is fascinating.

One recent case that has caught my attention is Redding v. Safford. You probably heard about the school officials conducting a strip search of a 13-year-old girl, on an unverified tip that she was hiding ibuprofen. One reason this is significant to me is that I have seen a lot of things at my school of questionable legality, including searches and unofficial expulsions. I do believe that there is a different standard of constitutional protections inside schools, but there must be limits on what school officials can do to students. (As a side note, it is troubling to me that despite being a small community that strives for mutual accountability and trust, we often respond to allegations of theft at YWLCS by saying there is nothing we can do, and when we do conduct searches, they often target White and Latina students, the minority groups in the school.) Unfortunately, I don't think the opinions of the Supreme Court reach down to YWLCS--though I do hope that under new leadership, which the school recently gained, we'll see some improvements in school culture.

The second reason this case seems particularly relevant to me at the moment is the way it reveals the role of gender on the Court. In a much-quoted interview with USA Today, Justice Ginsburg makes it clear that because of her gender, some of her perceptions in this case and in others vary from those of her male peers on the bench: "You know the line that Sandra and I keep repeating ... that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence."

Ginsburg goes on to say that most of the time, the conclusions that she comes to are seldom different from her colleagues' as a result of gender. But sometimes the difference is significant, as in the case of Lilly Ledbetter. As the interview states, "the court — with Ginsburg vigorously dissenting — narrowly ruled [in the Ledbetter case] that women could not sue for pay inequities resulting from sex discrimination that had occurred years earlier." Again quoting the interview, Ginsburg "was openly frustrated that some of her male colleagues, in her view, might not have understood the discrimination women face on the job." To me, it is easy to imagine how a person who is very much against gender discrimination in theory but who does not see it as a serious problem in practice (they might think, for example, that it is not widespread, or that when it does occur it is not difficult to address and overcome) can come to a conclusion that is different and which has very different implications for society than the conclusion arrived at by a person who is equally opposed in theory but who has a different set of experiences which indicate that is is a serious problem in practice. Obviously, that set of experiences is informed by many factors, gender being only one.

All of this takes me back to the top of the post. I think that Judge Sotomayor brings a set of experiences to her work that are important to include in the jurisprudence of our diverse and pluralistic nation. She seems eminently qualified and there is no doubt in my mind that in some cases, her background will allow her some insight that other justices will miss, just as in other cases, their various backgrounds will allow them certain insights.

I don't believe that all the conclusions that people of color come to as a result of living as part of minority groups are right; indeed, they couldn't be, because they are as diverse and contradictory as can be. But there's a reason we relish the idea of pulling yourself up by your bootstraps in this country, isn't there? What does someone who has been through that see, that someone who was born into a life of comfort and wealth doesn't? In a similar but obviously not identical way, living without the privilege of being in the majority informs one's perceptions. A commentator on bloggingheads put it this way: "For people who only know the wood-paneled office in New York ... just like she has 15 more years on the bench than John Roberts, she has ... more experience, she knows more about America." Sotomayor may not have better experience, just more, in the commentator's analysis.

In the quote that won't go away, Sotomayor says: "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." I think it's reasonable, in general, to hope that someone with more experience would use those experiences to come to better decisions than someone with less experience. I regret that race politics are such that this remark has stirred up such anxiety on the behalf of white males, plenty of whom have confronted difficult issues that have enriched their experiences, and many of whom have not. I know this is true because of the interactions I've had, including conversations explicitly about race and privilege.

It strikes me as absurd to claim that the law should be made without regard to personal beliefs and experiences. Those beliefs and experiences are what drive and inspire us, and we should talk about them, work out their consequences, and use them to fuel the debates about our policies and our future that our democracy requires. To me, it is far more frightening to imagine a world where government is driven by machines that do not have beliefs or experiences but run on some program, say Constitution 2.9 or NCLB 2001, than to live with a government that is run by people who make mistakes but who can be flexible enough to acknowledge those mistakes, explore them when necessary, and improve.

I feel like I've really rambled and not said anything particularly original, but I would be honored to hear your responses, disagreements, etc. in the comments section or in person, or via email, whatever ...

On a related but divergent note, I need to do some research on the racial achievement gap. I would love to see some data comparing achievement of minority students in schools where they are part of the majority, where they are part of a small minority, and where no one race makes up the majority of the student body.

I guess this leaves my comments about Obama's speech as a kind of postscript. Well, I loved it, and the focus on specific issues that are important for America at large with special salience in the black community, but my favorite part wasn't something he said. It was the vibrance of the cheer when he called on the NAACP to fight discrimination against "our gay brothers and sisters." I feel encouraged.