The Supreme Court and Other Myths about Judges

For two days Sonia Sotomayor has repeatedly stated the mythical mantra that all decisions made by judges are based on the law. She has had to do this while Republican senators have baited her about her "Wise Latina" remark. Again, and again she has reassured each Republican Senator that her decisions have been, and will be, based solely on the law. Did you miss that? Her decisions have been, and will be, based solely on the law. If she were to do this, then she would probably be the first judge in history to accomplish this feat.

Every human being makes decisions based on a variety of factors. The decisions that people make are ultimately based on information they believe to be true. This information is gathered through a filtering process based on people's belief systems, emotions, and a whole host of unconscious and subconscious feelings and experiences that all people possess. To assert that a judge is able to bypass to all past experience, ignore emotions and feelings, and be totally aware of all the subconscious motivations is utter nonsense. Millions of people saw the interview with Chief Justice Clarence Thomas on 60 minutes. Can anyone actually believe that this angry man who grew up with a tyrant of her grandfather does not have his decisions influenced by that experience?

During the current hearings to Senator Sheldon Whitehouse, a Democrat from Rhode Island, stated that in every major case Supreme Court Justice Roberts sided with the prosecution over the defendant. I'm sure that the Chief Justice could cite his reasons for each and every case, but the sheer consistency on his decision-making pattern speaks to an internal believe system that outweighs the impartiality of the law. Justice Roberts has a view of the way the world should be. The information he gathers on a cognitive basis is filtered through that worldview. To believe that all all his decisions are based solely on the Constitution, legal precedent, and total impartiality beggars the imagination.

The notion that "facts are facts" is also nonsense. I live in the South where the civil war never happened. Rather, there was a war of Northern aggression called by Southerners the War between the States. The southern conceptualization of the civil war is very much alive, and if anyone doubts it, there are many Southerners who would be more than willing to debate the issue. Belief systems structure "facts" and marshal them into a coherent view of the world that enables people to live in a society that make sense to them. Judges, and Supreme Court justices, are not immune to this process and cannot render judicial systems in isolation from the society in which they live in the believes they have about themselves in the world around them. The fact that only one member of the Supreme Court is a woman is testimony to the impact of society. The fact that only one member of the Supreme Court is black or Hispanic is also testimony to the impact of society.