It’s funny. I watched the HBO movie Recount last night, where both sides of the Bush-Gore election are portrayed in a fairly positive manner, but the Supreme Court is not. It was an interesting thing to watch in the context of the nomination of Justice Sonia Sotamayor to the United States Supreme Court.
I’m not sure how anyone can look at Bush v. Gore and not say, at the very least, that the court always makes decisions as an exercise of political power that awards some as winners and others as losers. This is what President’s do when they set particular administrative policy, and it is what Congress does when they pass legislation. In the olden days (see: Montesquieu, Madison), these three facts were called judicial power, executive power, and legislative power. Somewhere along the way, America has become bedazzled by this idea that judges somehow do not use power, and that their decisions on law are simply like “calling balls and strikes,” to quote our now Chief Justice of the Court.
What is funny, actually, is that Justice Roberts’ famed comparison not only misstates the duty of the court, it misstates the purpose of umpires. Yes, umpires are supposed to call balls and strikes as accurately as possible. But they are supposed to do so in order that no one feels as though the game’s integrity is compromised. We use umpires because they are disinterested, not objective. Even with television exposing the shocking performances of officials in sports night after night, we need them in order to contain the impact that certain types of cheating and intimidation have on deciding winners and losers.
This, too, is in effect what the use of judicial power is for. It is designed so that it may allow politics to determine who wins and loses under the conditions that it finds most prudent for all. Judges are as disinterested as possible, but are not wholly disinterested. If one looks at the decisions of Justice Scalia, who is supposed to be one of the great examples of “judge as umpire,” one can find passages about the core of our culture in gay rights decisions, implied harm to political candidates and the nation in Presidential recounts, and proclamations that Supreme Court rulings on releasing detainees have made our country “less safe.” Even Justice Scalia has an understanding that the judiciary rules on the structure of power in society and deems some ways valid and others invalid. He has a particular view, that is colored by his particular notion of what’s at stake in who it would be wise to privilege in these power relations. While I do not always agree with his sense of what is prudent in assigning these privileges, I do think he is, in fact, trying to make legal decisions with these concerns in mind, and is right to do so.
In this context, the “umpire” view of justice actually hinges on preserving the existing privileges in the structure of power in American society as much as possible. It is not, on the whole, a terrible impulse. It is also, clearly, not always the best impulse either. In fact, Sotomayor’s comment, “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.” Is directed specifically at egregious decisions by famed early twentieth century legal realists who made egregious legal decisions because they had no understanding of how underprivileged non-whites fit into the current and future constellation of the American regime.
As Brian Leiter points out in the link above, there is empirical evidence to show that race effects legal decisions. However, to firmly believe that this implies something about the law, argues some in the opposition, makes a judge not sufficiently disinterested to be competent. On this view, the only way to prove you are disinterested enough is apparently to lie about how disinterested you are.
I do not know if Justice Sotomayor would make a competent Supreme Court justice or not. What I think that I do know is that the idea that privileging the allocation of power to its default sources is what conservative justices do, and that this is not always either the best or the worst course of action. Neither is having the position of Sotomayor as I understand her position. In short, their is no implied holy covenant of jurisprudence that either a Scalia or a Sotomayor offends, so let’s stop pretending that there is and move on.
Posted by stevenmaloney 
Posted by stevenmaloney 
Posted by stevenmaloney 
