Sotomayor right: Biography does influence rulings

According to Judge Sonia Sotomayor, biography matters. President Obama’s nominee to the Supreme Court believes a person’s gender, ethnic background and upbringing will inevitably affect how he or she interprets the law.

She is absolutely correct.

The jurisprudence of Clarence Thomas is inescapably informed by his personal history, both as a black man and as someone who lifted himself out of poverty. Likewise, the rulings of Antonin Scalia are informed, even if subconsciously, by his strict Catholicism. Chief Justice John Roberts grew up as the son of a Bethlehem Steel executive, an upbringing that at some level had to color his outlook on issues such as management-labor disputes.

After all, Thomas, Scalia and Roberts are human, and we do not stop being human when we don a judge’s robe. Furthermore, the law is not a mathematical construct. Two plus two always equals four no matter who adds it up, but the law is a human construct, subject to human interpretation. So it matters which human does the interpreting.

In a 2001 speech, Sotomayor made the same point, noting that “there can never be a universal definition of wise.” Then came the sentence that opponents want to hang around her neck:

“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.”

Read that carefully. Sotomayor expresses hope that her life experience would make her a better judge than someone who did not have that experience. There’s nothing controversial in that thought, as the example of Sandra Day O’Connor demonstrates.

In 1981, O’Connor was nominated to the Supreme Court by Ronald Reagan, in part to honor a campaign pledge to name a woman to the court. (Apparently, he saw wisdom in diversity).

Part of O’Connor’s appeal was her biography. She had grown up on an Arizona ranch and had political experience as majority leader in the state Senate. As a woman, she was also a legal pioneer of sorts. After she graduated third in her class at Stanford Law in 1952, no California law firm would hire her (although one did offer her a job as a secretary.)

In 1982, soon after joining the Supreme Court, O’Connor wrote the majority opinion in “Mississippi University for Women et. al v. Hogan.” The ruling, which held that the public university could not bar men from enrolling in its nursing program, might seem obvious today, but a quarter-century ago it was not. It came in a 5-4 ruling, with O’Connor as the deciding vote.

In the opinion, you can hear O’Connor’s gender and biography speaking.

The law, she writes, “must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.”

And if the objective of a law “is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.”

Almost two decades later, in her 2001 speech, Sotomayor agrees that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” She strives for “constant and complete vigilance in checking my assumptions, presumptions and perspectives.”

However, she also acknowledged that is a worthy goal to be aspired to but never achieved by mere mortals.

The Founding Fathers knew that as well. If they believed it possible for a judge to rule solely on the basis of written law, unaffected by personal background, history, experience, etc., we would need only one such wise judge on the Supreme Court, just as baseball requires only one umpire for the simple duty of calling balls and strikes.

Instead, the original Supreme Court convened with six members, a number that has since grown to nine. From the beginning, our Founding Fathers understood that court interpretations are just that, interpretations, and that no single person can overcome their own biases. Biography matters, and the best interpretations are those created by people with disparate backgrounds and life experience.

It’s the nearest we can get to wisdom.

Jay Bookman, an Opinion columnist, writes Tuesday and Friday.

Blog with Jay Bookman at ajc.com/opinion.