The National Review’s Jonah “Doughy Pantload” Goldberg complains this week as he revisits President Obama’s desire expressed a year ago for a Supreme Court Justice nominee possessed of empathy. Goldberg likens this to an expectation that “Lady Justice should peek from under the blindfold every now and then.”
No, Goldberg. You do not get to complain about potential bias while benefiting from the cultural capital accrued to your status as a white male in American society. The problem is that the Supreme Court has been blind to its own built-in bias, inherent in its majority of white males; the Court should not be blind to this as it evaluates and interprets the law.
Just as it’s easy for Goldberg to complain that the Court should be blind (even to its own bias) in its decisions, it’s very easy for white men to claim that anything beyond the black-and-white four corners of the law — law paid, written, passed, and enforced substantively by and for white men — should be ignored.
It’s much easier when one has never been at the receiving end of the baton to ignore what happens away from the gripped end; it’s removed, at a distance, the pain not felt. The condition shapes a body of knowledge based on the experience of wielding and keeping the baton, not the experience of living under it. (One wonders how much this has encouraged the promulgation of torture.)
It’s also very easy to maintain the distance when damages must be quantified in terms of the lingua franca possessed and used substantively by white men — in terms of money and capital.
How does one put a price on the loss of dignity and self-esteem to a pre-teen girl who has been violated in the search of her underwear by school officials for over-the-counter pain medication, especially when the persons making the assessment will have never been exposed to such humiliation? (See Safford Unified School District v. Redding.) Imagine Justice Ruth Bader-Ginsburg’s frustration with male counterparts who could not grasp the damage in this case, let alone quantify it, simply because her co-horts couldn’t see themselves in such a position, let alone translate the loss into their lingua franca.
Blind justice, my eye.
We can argue all day as to whether empathy (the ability to put one’s self in someone else’s shoes) or sympathy (the ability share sentiment or feeling with others) are appropriate to the interpretation of law. This question remains: how else are we to rectify a continuing problem with interpreting law which governs all the people, when it is bought/written/passed/enforced by a single group with the majority of political and economic power?
How do we the people as a whole ensure the spirit of the law reflects the spirit of all of its people, both at the point where law is created and at the point at which it is interpreted?
I’ll point to Brown v. Board of Education as an example of the kind of change which might not have been realized had the Court been led by a different Justice who could not grasp the intangible damages. What if had been Justice Fred Vinson leading the court instead of Justice Earl Warren? Would we have seen this:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” [p*494] Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. [n10]Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [n11] Any language[p495] in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. [n12]
The intangibles which exist between those black-and-white words have now become part of the dialog of the Supreme Court; there are still swathes of intangibles which have gone ignored because the Court’s current composition ignores them or cannot see them.
Even if a majority of empathic/sympathetic individuals do not sit on the bench, there must be a range of individuals who exemplify the population of this country, including people who are empathic or sympathetic. Some of the people on the bench must also be able to point out clearly even in minority dissenting opinions that the law is flawed and why, so that legislators can be held to account and rectify the flaws.
Look, too, at Justice Bader-Ginsburg’s dissent read from the bench in the case of Ledbetter v. Goodyear Tire & Rubber Co.; Justice Alito said the case was decided by the majority “easily” on the law “as written,” while Bader-Ginsburg spoke for the four dissenting justices saying, “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination…”
Had there been one more justice who did not interpret the law “as written” from the same perspective of the male majority, there would have been no need for the subsequent modification to existing law in the form of the Lilly Ledbetter Fair Pay Act. And had Bader-Ginsburg not been on the court to provide a pointed rebuttal, there might not have been an adequate path to remedy the bias in the law.
There must be greater discernment of intangible damages by justices; call it empathy or sympathy if you need to label it, but seating another person in the same mold as the predominantly white, all-male majority which could not see the holes in the 1963 Equal Pay Act would be a mistake on the magnitude of approving Tim Geithner to be Treasury Secretary or reapproving Ben Bernanke as Federal Reserve Chair.
Albert Einstein once said, “A problem cannot be solved from the same state of consciousness which created it.” I offer an addendum: a problem may not be seen by the same state of consciousness which created it. Let’s ensure the Supreme Court can actually see the problems which are presented before it.