Justice Sotomayor: The Value of Difference

Supreme Court Justice Sonia Sotomayor distinguished herself during her first oral arguments before the court, September 9, 2009, by asking a lot of questions, 36 questions in the first hour alone. By way of comparison, Justice Clarence Thomas has not asked a single question in over three years.

Sotomayor’s judicial style has been chalked up to her upbringing in a working class Bronx neighborhood, her Puerto Rican heritage, and, of course, her gender, but rarely to her Princeton and Yale educations. However, it is exactly the confluence of all facets of her biography, that give her not just a unique vantage point on legal questions but a unique method for interrogating the truth. I am reminded of the brouhaha over Sotomayor’s 2001 “wise Latina” comment. Specifically, she said that she “would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life.” During the confirmation process Sotomayor, wisely, passed on the opportunity to go on record as being a “difference feminist” and eventually apologized for the comment altogether. But a difference feminist she is. More accurately, she believes that a judge’s life experiences influence his judicial reasoning. She said as much in that 2001 speech, given at a UC Berkeley symposium celebrating the 40th anniversary of the first Latino named to the federal district court. She stated “I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that - it's an aspiration because it denies the fact that we are by our experiences making different choices than others....” Sotomayor’s reasoning here is a product of her own experiences as both a political outsider and insider. As an outsider, i.e, a minority woman from a working class background, with a brusque manner and a Bronx accent, she has lived the experience of difference. She has felt the discomfort of walking into a classroom room of mostly white, upper middle class students flaunting perfect teeth and the latest back-to-school fashions. She has been judged to be intellectually less capable and less sophisticated because she bases her decisions on pragmatic concerns rather than arcane legal theory.

Indeed, the charge of intellectual inferiority followed her through the confirmation process with several clerks who had worked with her remarking that she was not very “intellectually rigorous.” This would seem an unlikely trait in someone who graduated from Princeton suma cum laude, graduated from the nation’s top law school, and went on to teach law at two other law schools ranked in the top five. This is hardly the resume of an intellectual lightweight. But due to the American infatuation with identity politics, or the “culture wars” if you prefer, it is easy to forget that Sotomayor is also a political insider, a woman of privilege and the product of an elite education. Yet thorough socialization to the American political mainstream is evident in her characterization of her life experiences as “the opportunity to make different choices.” Rather than talking about discrimination and prejudice, she describes the Latina experience as having a “richness” that white men simply haven’t had the good fortune to experience. No victim feminism here. Indeed, Sotomayor seems completely reconciled to the dominant American view that our lives are what we make of them and that the smartest and most hard-working among us can and do rise to the top. Along the way, she seized the opportunity not just to climb the social status ladder but to ask a lot of questions, to challenge business as usual, to ask why things are being done the way they are being done. It is this fearless curiosity that is the value-added of having her on the US Supreme Court and that is likely to influence the constitutional order over time. Sandra Day O’Connor, the first woman to serve on the court, is often quoted as saying that a wise woman and a wise man will come to the same legal decision. This is a brilliant way to make women seem a non-threatening presence on the bench. However, it leaves open the possibility that wise women and wise men may come to their conclusions for different reasons and through different processes. It is those differences that have led countless scholars to observe that women have different leadership styles, different approaches to legislating, and a different way of making moral or ethical decisions.

As a matter of fact, Sandra Day O’Connor was noted for issuing concurring opinions. This is where a justice agrees with the ruling of the majority of the court but for different reasons. These are enumerated in a separate, concurring opinion that, along with dissenting opinions, are often influential in deciding future cases and offer a new framework for understanding legal questions. Thus, I am grateful for Sotomayor’s presence on the bench. I look forward to reading not just what she decides, but how and why she comes to her decisions. I take comfort in the fact that a pragmatic, outspoken Yankee fan in a skirt is rattling the cage.