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Commentary By James R. Copland

What of Impartiality?

Governance Civil Justice

In the Western legal tradition, the courts are symbolized by Lady Justice, thought to depict the Roman goddess Justitia and the Greek Titan Themis. She holds in one hand a sword, symbolizing the power of the state, and in the other the scales of justice, signifying impartiality. The latter quality is reinforced by her wearing a blindfold, which demonstrates her lack of prejudice as to the parties before her.

In deciding to nominate Judge Sonia Sotomayor to the U.S. Supreme Court, President Obama apparently gave substantial weight to Lady Justice’s gender — all four of his reported “finalists” were women — but partisans differ on the degree to which he embraced her impartiality. Speaking before Planned Parenthood in 2007, Obama said that his criteria for selecting judges would include having “the heart, the empathy, to recognize what it’s like to be a young teenage mom; the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.” To detractors, such a statement can be taken to mean ripping the blindfolds off Lady Justice and substituting a jurisprudence in which judges are particularly responsive to the identities of the parties before them.

Sotomayor’s inspiring life story, in addition to generating favorable press attention, has implicitly delivered the understanding and empathy the president sought. And far from shrinking from the notion that her background might affect her judging, Sotomayor has embraced it: In 2001, at a “cultural diversity” lecture at the University of California, Berkeley School of Law, she opined that “gender and national origins may and will make a difference in our judging” owing to “inherent physiological or cultural differences” — a remark that would have been an immediate disqualifier had it been uttered by a conservative white male.


Read most charitably, Sotomayor’s comments reflect but a modern-day recapitulation of the deconstructionist principles articulated by Jerome Frank, who, like Sotomayor, served on the U.S. Court of Appeals for the 2d Circuit. A father of the legal realist school, Frank famously wrote that his judging could be influenced simply by what he had for lunch. The school of judging Frank’s observations reflect has been characterized as results-oriented, at its worst substituting a judge’s personal policy preferences for the plain meaning or purpose of a statutory or constitutional provision.

This most extreme version of realism rarely emerges in most legal cases. Conversely, the president is correct that the toughest cases, by definition, are often not clearly dictated by statutory or constitutional text. In at least some such cases, Sotomayor’s pledge “never to forget the real-world consequences” of her decisions is not unobjectionable on its face. Unfortunately, however, empathy for disaffected groups — the president’s preferred key factor in these cases’ resolution — emerges as an empty, unhelpful barometer in reaching sound legal outcomes, an emptiness reflected in many of Sotomayor’s decisions.

Take for instance Sotomayor’s strongly worded dissent in Gant v. Wallingford Board of Education , in which she disagreed with a decision to dismiss a race discrimination lawsuit by a black first-grader who had been demoted to kindergarten. Although this decision may have reflected empathy for the student’s plight — and it is true that minority students are sometimes unfairly stereotyped — it is far from clear that Sotomayor’s position would have helped black students in the real world. The modern tendency for courts rather than school boards to resolve education disputes has worsened public education, and my colleagues who work on school reform have shown repeatedly how decisions to “socially promote” students have retarded academic progress, particularly for poor and minority students.

In other more mundane but no less important cases, Sotomayor has similarly displayed an unfortunate ignorance of the actual second-order effects her decisions would have. By embracing loose certification standards for class actions — a posture her 2d Circuit colleagues later reversed — she permitted lawyers to shake down corporations with no real evidence of wrongdoing. By adopting a cramped reading of federal laws designed to curb securities litigation abuse — an interpretation reversed unanimously by her likely future colleagues on the Supreme Court — she effectively gutted a reform newly enacted by Congress. In contrast to Justice David Souter, whose seminal decisions strengthening pleading standards and limiting punitive damages display a healthy skepticism of the harms wrought by abusive lawsuits, Sotomayor has shown little understanding of litigation’s limitations in solving social problems.

Sotomayor’s jurisprudence, then, is not so much objectionable because she sometimes looks at “real-world consequences” but rather because she has repeatedly shown an inability to discern the real-world consequences of her decisions. I have little faith that such nuance will emerge in the upcoming confirmation hearings, clownish spectacles in which senators genuflect to a public majority that cannot identify a single Supreme Court justice. I do, however, worry about Sotomayor’s influence on the law in the decades to come.

This piece originally appeared in Notre Dame Journal of Law, Ethics, and Public Policy

This piece originally appeared in Notre Dame Journal of Law, Ethics, and Public Policy