What's So Threatening About Sotomayor's Real Life to Her Right-Wing Critics?

By Emily Badger, Miller-McCune.com. Posted June 12, 2009.

The idea that justices should mechanically apply the law through a lens in no way colored by their own experience Tushnet chalks up to a successful conservative political strategy. Opponents say the view ignores two complications: Language is inherently ambiguous, and if the Constitution or statutes held indisputable answers to these cases, they wouldn't be in the Supreme Court in the first place.

Lani Guinier, a Harvard law professor, also sets the shift inside a broader debate around originalism, the idea that the Constitution is a fixed document judges must read through the eyes of its creators and not with a view toward contemporary society.

"The idea of originalism makes the notion of a judge relying on anything other than the historical record verboten," she said. "And in fact judges who interpret the Constitution in conjunction with anything else other than the historical record are called judicial activists. What you're really seeing here is the morphing of that debate on judicial activism."

'A Mathematical Fact'
Scott Page, a professor of complex systems, political science and economics at the University of Michigan, has been explaining through math this same concept that Belknap accepts as self-evident: that problem-solvers are inherently influenced by their background, and that a multitude of backgrounds helps a group more often arrive at the right answer.

Sotomayor's supporters — and Sotomayor herself, in the full text of her Berkeley speech — aren't suggesting that she'll apply some Latina brand of law, just as justices Sandra Day O'Connor and Thurgood Marshall didn't read the Constitution differently as a woman and an African-American. Rather, they may have read the facts of a case differently, emphasizing a factor it might not occur to another judge to examine.

Ruth Bader Ginsburg recently illustrated this in the case of a 13-year-old girl who had been strip-searched at school. The girl's humiliation weighed heavily on Ginsburg but not, she criticized, on her male colleagues, who didn't recognize what such an event might feel like: "They have never been a 13-year-old girl," Ginsburg said of the other eight justices.

"There's strong evidence that based on ethnicity, training, education, age, we're going to parse things differently," Page said. "I'm likely to say, 'this is like a Brady Bunch episode.' Someone else is likely to say, 'this is like There's Something About Mary."

Page has tried to study the value of diversity when people with different ways of parsing things work together. No one person can be diverse, he starts by explaining; you can only be diverse relative to other people. Much empirical work on the benefits of diversity have the flaw, he said, of measuring activities people work on side-by-side but not together. The Supreme Court, on the other hand, is the perfect example of a kind of collective problem-solving group where the blind spots of one individual may be filled out by another's expertise.

"This isn't like the mantra 'two eggs are better than one,'" Page said. "It's a mathematical fact; it's like the Pythagorean theorem, a-squared plus b-squared equals c-squared. You can show the group's error equals the average error of the people in the group minus their diversity, which is just the differences in how they predict outcomes."

The more highly dimensional the problem, he says — i.e., Supreme Court cases — the more the theorem has bite.

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