Yesterday, I saw some flack-for-hire Republican meathead on The Ed Show make the argument that white men can put themselves in the shoes of women, blacks, and latinos and be fair judges. To prove his point, he noted that nine white men had overruled Plessy v. Ferguson in the Brown v. the Board of Education of Topeka case. That kind of struck me because I had made almost the exact opposite argument earlier in the day. I had argued that Plessy v. Ferguson was a case in point that a panel of nine white male judges could be totally blind to the real-world repercussions of American apartheid in a way that would be totally unthinkable for a court that included blacks or women or pretty much anyone that wasn’t born at the top of the societal totem pole. But, the meathead was right. Nine white male judges had overturned the horrible ruling of a prior panel of nine white male judges.
Of course, the latter panel included Felix Frankfurter, who had grown up in a Jewish immigrant family on Manhattan’s Lower East Side. Frankfurter understood what it meant to be a second class citizen. Until recently, Catholics have felt the same sting of discrimination in this country. The real point, though, isn’t that white men are somehow incapable of being fair judges. Empathy has become a big term recently in this debate about the Supreme Court. There are different kinds of empathy. One can imagine what it is like to be pulled over by the police because of the color of one’s skin. That’s one kind of empathy. Another kind of empathy is actually knowing what it is like because it has happened to you. You can look at statistics about how health care costs cause a certain percentage of household bankruptcies or you can have it happen to your mother, aunt, or daughter.
When considering the real world costs of a given law to judge whether it is consistent with human dignity, it certainly helps to have some direct knowledge on the subject. In assessing the practice of pay-day lending and other forms of legalized usury, there is no substitute for living among the people that feel compelled to make use of pay-day lenders.
In judging whether it is reasonable to require a government-issued photo I.D. when voting, it helps to live or work in the ghetto where almost no one has a driver’s license or the spare money to take a bus across town to purchase an I.D. they need for no other purpose.
It isn’t that Puerto Ricans need a judge on the Court so that someone will vote with them and dole out a form of patronage-justice. They need someone who knows their neighborhoods instinctively.
Almost everyone that has ever served on the Court has lived some kind of privileged life. If you took nine people out of some suburban Country Club clubhouse and asked them to consider what constitutes reasonable search and seizure on the streets of Philadelphia, they would not to be able to come up with as good of an answer as nine people from the streets.
The law is the law, but when you move from the strict guidelines of statutory language to assessing what might loosely be called ‘justice,’ the best Court will be one that reflects the actual demographics of the country. There should be four or five women on the panel. Since white men only make up 37% of the population, there should only be 3-4 white men on the Court. The Court should have someone who didn’t spend their career as a judge. It should have people from all socioeconomic classes. It should have people of diverse religious backgrounds, or no religion at all.
I don’t think you want to be too formulaic about it. But the truth is that interpreting the statutes and the precedents is not something you need to be a genius to do. Every judge has a very competent staff who are capable of doing the basic legwork. The real challenge is to produce justice. And a panel of nine white men (or nine black women, for that matter) might get a ruling right, but get it right seventy years too late.
We need a court with empathy, but not empathy twice removed.
