As President Obama considers his nominee for the position of Associate Justice of the Supreme Court, a lot of the talk is about the desirability of appointing a woman or an Hispanic to the Court. There are two very different arguments that might be behind such an idea. The first is the idea that the Court should be in some way a representative body, reflecting the make-up of the American polity. The problem with that idea is that from the outset, the Court was intended to be a non-representative body. The different branches of government are not only designed to check one another through the exercise of overlappin powers, they are also intended to be different in kind from one another. Membership in the House and the Presidency, in different ways, are representative offices; the Court and (prior to the XVIIth Amendment) the Senate were not. Those institutions were intended to be elitist. The classic story is from the early 1970s, when President Nixon nominated G. Harold Carswell for a position on the Court. It was widely agreed that Carswell was unqualified, in fact mediocre, but that did not dissuade Sen. Roman Hruska (R Neb.). Hruska gave us this famous appeal to the principle of representation: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?" Russell Long (D La) added his own academic spin to the populist position: "Does it not seem that we have had enough of those upside-down, corkscrew thinkers? Would it not appear that it might be well to take a B student or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting a 100% increase in crime in this country?"
On the other hand, there is an entirely different argument in favor of representation on the Court, one that is directly connected to Obama’s desire for a justice with a demonstrated capacity for "empathy." This is the idea that a woman, an Hispanic, or a member of some other presently underrepresented group will bring a particular perspective to the task of judging that is relevant to the work of the Court. That is a perfectly valid argument, and it appears to be the one motivating Justice Ginsberg. In Ginsberg was visibly upset by her male colleague’s lack of empathy for a 13-year old girl who was subjected to a strip search by school officials based on an unsubstantiated tip that she was in possession of Ibuprophen. Dahlia Lithwick, writing on Slate, describes part of the colloquy. "Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts. But Breyer just isn’t letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."
Issue like the degree to which an action by state authorities is traumatic or violate accepted social norms come up all the time, which is exactly why empathy is such an important quality in a Supreme Court justice. The classic case is Justice Powell. Powell cast the deciding vote with the majority in Bowers v. Hardwick in 1986; according to Edward Lazarus’ book Closed Chambers, during conference, Powell informed his colleagues that he "had never met a homosexual," and gave the impression that he might have voted against the law – as he originally intended to do – but for this lack of exposure to a member of the affected class. After the vote, Powell’s long-time chief clerk informed the Associate Justice that he was, in fact, gay; in later speeches Powell declared that he regretted his vote. But a Supreme Court justice’s ability to recognize harm being done to someone by an action of the state should not depend on his or her being personally acquainted (and aware that they are acquainted) with a member of the same group. That’s what empathy – what Martha Nussbaum calls "narrative imagination" – is all about, the capacity to recognize the reality of others’ situation.
So if being a woman or an Hispanic is a requirement for the ability to empathize with female or Hispanic members of the population, the argument for including representatives of those groups on the Court makes sense. The problem is knowing how far to take the principle.
Here’s a tricky case: religion. Our current Court has gone to great lengths to relax the separation of Church and state by insisting that religious discourse be included in public discussion and religious groups be given access to public facilities on the grounds that religion is a form of viewpoint. In Rosenberger v Rectors of University of Virginia (1995), Jutice Kennedy put it this way: "Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered." The move involves shifting the focus away from the Religion Clauses of the First Amendment toward the Free Speech Clause: if, as Justice Kennedy eloquently told us, religion is a viewpoint as well as a content, then failing to use public resources to support religious expression on the same basis that secular expression is supported constitutes the suppression of expression.
Well, either one believes Kennedy’s argument or one does not. If the argument is accepted – that is, if we agree that religion is a specific viewpoint – then what are we to make of the fact that there are presently five Catholic justices on the Court, and may be a sixth shortly? Personally I don’t buy the argument. Of course many people’s views are shaped by their religious faith, but that’s not the same thing as saying that religion is in and of itself a viewpoint; by the same token, I do not assume that anything at all follows from the fact that the majority of the Court is presently drawn from a particular religious minority (24% of the population, which makes them either a minority or the largest community among a plurality, depending on whether one disaggregates "Protestant.") But if Kennedy is right, then of course a predominantly Catholic Court must be expected to reason differently – from a different "viewpoint" – than the old all-Protestant Courts of yore, or the variously mixed Courts of the modern era. In which case there is a problem if one believes in the idea of a representative Court.
The point is that any argument in favor of choosing a woman, an Hispanic, or a Wiccan (the fastest-growing religion in America!) should be made in terms of an expectation that such a justice will display a level of knowledge or imagination of social realities that would otherwise be unavailable. That’s not an argument about representation, that’s a perfectly valid (if debatable) argument about qualifications. In fact, that’s the real point of the argument about empathy. I hope to hear the Obama people make it.
[cross-posted at Huffingtonpost.com]