Author: Stanley Fish

The question we were there to take up was, “What kind of Supreme Court justices do we want?” The topic was set before the nomination of Sonia Sotomayor, but of course the upcoming hearings of the Judicial Committee were on everyone’s mind. And so there was a lot of talk about empathy against the background of President Obama’s praise of it and Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.
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I posted something at my blog about how context inevitably shapes our judgment. No one expects the Chief Justice not to be influenced to some degree by his past work in government. As a white male I may be wrong, but it is my guess that smart women of color are a lot more attuned, not only to their own communities, but tothe dominant culture than somefolks might expect. The closest I came to being that aware of a dominant culture was knowing something about Roman Catholic marriage procedures when I lived in Massachusetts. One of their priests was surprised that I knew about dispensations from place and form, so I told him that I would be a fool not to know such things in a community that was so heavily Roman Catholic. I suspect Judge Sotomayor knows a lot more about Anglos than I do about Latinas.

Mr. Keyes and Father Weir:

I think this is a fascinating topic.  I am a Puerto-Rican and as someone who loves this country and understands how difficult it sometimes is to be Puerto-Rican - it is even more fascinating.  Life as a Puerto-Rican in the United States is not easy.  The cultural differences are bearable but there is a real element of racism and it is very difficult to address, speak about, feel or acknowledge because a lot of us look just like you. 

When I first heard about her nomination, my visceral, initial reaction was not one of pride but rather skepticism.  I don’t believe in nominating people just because they are of a certain nationality or to force diversity when there may very well be other candidates that are more qualified.  My father is a Puerto-Rican and he disagrees with her nomination.  He also grew up in New York but was more influenced by the Jewish population because his mother married a Jewish man and he was raised in those circles.  He is, in his old age, very conservative.

Now, I think that the more appropriate question would be, (rather than “What Kind of Judges Do We Want”) is what cases would be brought forth to the bench that would be colored in any way by her experiences and what elements of the creativity born from her life would create any conflict and/or provide an insightful element to the other justices when reviewing a case?  How far does culture go in determinating what literature is grafted into the laws of a country? 

Racism is not something that you can teach to other people, nor is the creativity that is born from those who have experienced it.  “Spick, whore, bitch, beaner, stupid, lazy” those are words that I grew up hearing all of my life.  And, they affect me very much.  That doesn’t qualify me to be a Supreme Court Justice.  It helps me to be more compassionate.  I’m not sure how that might make me a better candidate than other people for a position - and there’s the rub.

Nevertheless, if her credentials are properly assessed and if indeed she is qualified at the very basic level - then another more appropriate question is - should we force diversity on the Court? 

The article Mr. Keyes cited is very interesting, but I think most people don’t understand that money plays a huge role in deciding what kinds of cases reach the court and what kinds of facts are admitted in the court and even whether cases are brought forward at all.  It’s about money and also about culture.  There are norms in one society that are nor norms in another.  Sniffing out variables and asking the right questions within the framework the courts provide is within the constraints of the law and what is reasonably expected from the judge’s personal experiences.  I have some knowledge of the legal system and I think there are very good measures in place to check egregious violations of ethics - and even the most small ones. 

Culture does a play a role and perhaps understanding what roles culture does play is more important than where she’s from.  There is an element of creativity in writing opinions and in assessing issues, so in that light I believe that it may very well be a good thing. 

That’s my opinion. I just wonder what kind of case would her ethnicity be an issue in?  I can say that in Puerto Rico we do not have black and white neighborhoods like we find here in the states.  We are a very mixed people.  Perhaps that kind of openness may also come with an element of insight that may enrich the court?  Perhaps that is at the root of the nomination. 

The law is very difficult to understand and practice.  I wonder what part imagination and culture have in the unwritten code and how the white justices read into that?

I can’t help but think that this belongs under the category of politics and not Anglican News.  Perhaps my browser has misplaced the thread?

Andrew:  You’re right, this isn’t Anglican News.  I’m not sure why it’s categorized that way.  I didn’t do it.  I’ll have to check with Craig about it… as far as I know on this site and the forums we’re posting anything that the moderators/editors find interesting, within reason, and to me this is interesting on a site like this insofar as it deals with questions of law, objectivity, and personal identity.  Please forgive our organization (or mine) if it is not yet categorized properly.

Cristina:  Thanks for commenting and welcome.  To be clear:  I don’t endorse Sotomayor as a Justice… but I’m not sure that Stanley Fish necessarily does either.  Folks on this blog will not be surprised to hear that like most trad Catholics I find the abortion issue to be a pretty crucial litmus test.  That said… I think Fish is right:  we shouldn’t pick someone for the Supreme Court just because they’re a minority and can therefore be better.  But nor should we reject conversation about minority status out of some concern for the purported objectivity of the Law.  Perspective matters.  So does legal training and moral formation.  I can say this because as a Christian I reject the assumptions behind liberal democracy that objectivity and impartiality can be achieved through the law.  I don’t think it can, because I believe in a God who through the election of Israel and the crucifixion and resurrection of a first-century Jew showed the world true justice.  Awareness of ethnic difference can make all the difference.  The fact is that a latina woman is probably more likely to be aware of the particularity of her perspective than is a white man; as such she may be at more liberty to seek the Good and True than is someone who thinks that he can seek the Good as an abstraction independent of his relation to it.  This is not to abstract particular virtues that are universal to ethnic minorities, but only to state how such ethnic difference may make a practical difference.  I seriously doubt that this alone should qualify Sotomayor as a Supreme Court Justice… but with Stanley Fish I think that the conservative outcry (“she’s not objective!”) is totally wrong.

Andrew, I did it!  I moved it to “Culture, Politics and Christian Ethics.”  Though I’m still not sure exactly how it ended up in “Anglican News.”  Thanks for pointing that out.

Mr. Keyes:

Thank you so much for your reply.  Wow. That’s very insightful.  I’m not sure about endorsing her but as I said in my earlier post if the matter is about forcing diversity, then perhaps in that light it is a positive element.  Abortion is a litmus test for me as well.  I think that what you wrote was very cogent and on-point - “the fact is that a latina woman is probably more likely to be aware of the particularity of her perspective than is a white man; as such she may be at more liberty to seek the Good and True than is someone who thinks that he can seek the Good as an abstraction independent of his relation to it.  This is not to abstract particular virtues that are universal to ethnic minorities, but only to state how such ethnic difference may make a practical difference.” 

I will think over your beautiful response and reply when I am ready.  I don’t know where to find out more about Sotomayor, so I checked Wikipedia.  I’m sure it will all be favorable and frequently monitored during this process but perhaps also because of that it will need to be very accurate to avoid any media fallout about disortions and may be a credible source for the most part.

As a gut reaction to the abortion issue (believing in the sanctity of life) I believe the issue boils down to faith.  An awesome faith that even though you have $50 in the bank and no job and the man who is the father left you, died or is incapable of caring for the child - God will pull through.  This is at the center of the abortion issue.  I absolutely believe the law doesn’t develop people’s consciences or faith.  This frailty in faith is an issue that is not only dealt with on a personal level, but also on a national one.  At the end of the day it is about waiting on God’s provisions and not so much on what one thinks and the limits of that reason and provisions. 

I too don’t believe that law alone can render justice.  However, laws and the creativity in drafting them can draw from a well where experience in assessing the practical elements that will develop frameworks that will sustain whether people abide by them or not or whether the people are truly capable of properly assessing the entire situation (in cases like abortion) can help.  That is, not only assessing whether a decision is overtly partisan but what part of that politics plays on the culture at large and where the failures of that culture are that make the situation such a problem and so prevalent. 

That’s a matter of faith and, like you said, assessing what is true not just as an abstraction or one’s relation to it.

I’ll respond more after I’ve fully digested all of your thoughts.  In the meantime, perhaps this may help us understand a bit more about who she is.  I suppose that how it can relate to Christian Ethics and Anglican Culture is—where is our culture fermenting any ideas about what life we keep and what life we discard in the minds of young women?  Who benefits financially from abortions (are the fetuses for sale) and are those financial benefits outweighing the moral ideals of our culture?  Do we brush under the carpet a quick and easy fix and not address the woman’s entire body and physical and mental health?  How expendable are some women and their fruit?  What other frameworks in the laws and culture of our culture pander politically and financially to decisions such as abortion?  What ideas as a culture and in christian circles contribute to a “culture of death” and a faith in reason and not in God’s provisions? 

You are sure right about one thing - nothing speaks better to that struggling woman than Jesus born in a manger.  “Out of Nazareth? Can anything good come from there?”

Perhaps, in that way, the turmoil of a woman and the faith needed to live on $50 might be translated properly and practically? 

http://en.wikipedia.org/wiki/Sonia_Sotomayor

Thank you Mr. Keyes.  I’ll have much to think about during this process.

Dear Mr. Keyes (and all):

I have just gotten off of the phone after a very insightful conversation with Professor Stanley Fish from his home (the professor whose writing you cited in this entry for discussion.  He studied at Yale and is a professor at Florida International University (my alma mater)).  His secretary contacted him and she in turn said he would be available to speak with me over the telephone from New York City.  (If you are reading this Mr. Fish - thank you so much!)  I did call him and perhaps my relay of the very interesting information Mr. Fish talked about with me may help structure this argument in a way that may illuminate the underlying structure of the court and where its role begins and ends and what part the church plays in shifting public opinion. 

I did not ask Mr. Fish if he endorsed Sotomayor and he did not volunteer that information.  I first asked him questions about what role the Supreme Court plays in the abortion debate and how culture and society and law play together in grafting laws.  I summarize my conversation with him below (it was a back and forth conversation, informal and light).

First, Mr. Fish explained the concept of precedents and that because the court considers itself a continuing institution, it cites itself, “as we said in such and such v. such and such,” and because they draw on precedents to draft opinions, it is an inherently conservative institution in that it builds on itself and the cases brought forth.  That is, a Judge cannot take matters into their own hands and as the article you cited states, the matters have already been “sliced and diced” before they are served on the court for their review.  A judge may preside over matters in a way that is more open.  I take that to mean that those manners will influence the availability, expression and perception into the cases brought forth. I imagine a Judge asks certain questions based on their experiences to understand the dynamic in the case and how it fits together.

Mr. Fish also then shared that only until 1967 did the Supreme Court rule that marriages between white and blacks were no longer illegal in a Loving V. Viriginia.  http://en.wikipedia.org/wiki/Loving_v._Virginia.  1967!  Mr. Fish said he was in his 20’s in 1967.  Can you imagine living through that now?  (Note how it is a case that prompts the review of the issue and not the other way around).

Mr. Fish also spoke about the real estate covenants; racial exclusionary covenants and their practice and the case that finally deemed keeping people out of certain neighborhoods and others out unconstitutional.  That is, real estate agents would not show certain neighborhoods to certain classes and races of people and that popular shift in opinion and its corresponding reflection in the number of cases brought forth to the court permitted it to review cases, cite itself and hammer out a decision that ruled these discrimination practices illegal.

Mr. Fish also touched on Lawrence v. Texas, the landmark case that made sodomy legal in Texas in 1986.

Mr. Fish also said that the current court is very conservative and it has not overturned Roe v. Wade.  He also said that there needs to be a very large shift in public opinion in order for something like this to change (and that would reflect itself in the cases brought forward to the court for its review).  He expressed that most Americans think abortion is terrible, but many Americans do not wish to revoke their right to choose and the availability of that procedure.  So, therein lies the conundrum and with this, I will express how Mr. Fish explained how changes in the court work -

The Court hears cases brought forth through the legal system as a representative pool of the general public opinion.  I understood Mr. Fish’s comments and pictured it in my mind as an institution that doesn’t trickle down - it trickles up.  So, a major shift in the public opinion would also be reflected by the cases brought forth in the legal system to be reviewed by the Court.  And, in the case of abortion, he said he cannot imagine a case where the Court would be brought back to comprehensively look at Roe v. Wade and overturn that decision.  He asked me if I foresaw a situation where that might happen? 

And so begins my reflections and what part the church plays in all of this.

Herein lies the genuine conundrum, I think, Mr. Keyes - the issue is not so much what “Judges we want” but rather, “what kind of society do we want and how does the current judicial and legislative systems permit the church to participate and translate its view into law.”  And that is not within the hands of the court as much as it is within the hands of the people and the cases they bring forward.  And, if the church, as an institution not necessarily barred from bringing forth its case to the courts and mobilizing a population (albeit a quagmire) what role would that church play in protecting unborn life? 

In response to Mr. Fish’s question “Can you imagine a case where Roe v. Wade might be overturned?” I responded as follows:

Perhaps there may be a case where a woman was harmed by an abortion and medical science proved that abortions genuinely cause an array of medical problems for women.  Before a woman has an abortion she has to sign a release to the abortion clinic and the attached list of one 1/2 pages of diseases she is more prone to develop as a result of this operation.  Indeed, it may very well be a slow death and difficult for the woman to really put her finger on.  That is, the list cited brain tumors, endocrinological problems, infertility, cysts in the ovaries and all kinds of diseases.  That would be very difficult to harness before a court and “slice and dice it” in a way that the court can digest it and make the connection.  I have met many women who have had an abortion who are now infertile and who suffer from a litany of problems, including miscarriages and all kinds of other problems. 

There may also be a situation where the political and financial underpinnings of the abortion world and its industry (are fetuses for sale) may play a huge enough role in overturning that decision. 

It is, most definitely, a woman’s arena - the vestiges of what is left after the operating table.  So, I don’t know what cases are before the court (that serve as a pulse to the general public opinion and its fingerprint in the legal system) that will bring forth and “slice and dice” these issues in a way the court can digest and read a clear argument against a woman’s right to choose.

Similarly, I do not reasonably foresee in the near future a case that will overturn Lawrence v. Texas and Mr. Fish said in response that public opinion being what it is and the courts being what it is and in the same manner cases would need to be brought forth to the court on abortion that would permit the court to decide anything differently will determine whether any of these decisions (precedents) will be overturned.  Mr. Fish said that in light of this structure he sees trends leading to the genuine possibility of the legalization of gay marriage within the next ten years.

I think this is fascinating, but certainly, the key lies not so much within the Justice’s hands (although objectivity, clear thinking is crucial), but rather on the collective voices of the people. 

So, indeed, the Anglican strife over same sex marriages and perhaps the less than active role in preventing abortions and providing relief to women who do, hearing their broken voices - may serve as a backdrop to the national debate on the issue. 

My conversation with Mr. Fish ended the series of questions and answers.  I felt I was speaking to a professor who was trying to draw from me questions that I could not properly share and he did a great job of translating my blue collar understanding of the law. 

I left with the impression that it is not so much the court that determines a society, but rather our voices in unison and a united voice that will help them hear the opinions and cries of the people.  With regard to abortion and same sex marriages (it seems to me) - that voice is scattered, broken and muffled on the church’s side of the fence in protecting marriage between a woman and a man and the rights of unborn life.

How do you speak for what does not have words in a secular society?  How does a work walk through that quagmire, putting on the hat of a secular court and yielding a powerful double edged sword?

I think that’s a better question.  Though, I understand the fear of losing an inch on the last line of defense.

Thank you so much Mr. Keyes - can you help me understand this in theological terms?

I have sent an e-mail to Mr. Stanley Fish’s secretary with this link for her to forward to him in New York so that if anything I am saying here is inaccurate and misleading or not an accurate representation of what he shared with me, he can interject if he wishes.  I took notes while I was speaking with him, so I hope the conversation is as true to its neutral nature as possible and properly expresses what was relayed.  (I thank you again Mr. Fish for the generosity of your time and your kindness in walking me through these complicated issues).

Sam,

For some reason, even when one selects another forum topic when writing a new post, the software still defaults to posting it in Anglican News.  You have to move it by hand after you’ve posted.

Wow, Cristina:  great that you took the initiative of talking to Stanley Fish on the phone!  I’ve been away from the computer for a few days and hopefully I’ll be able to come back to this topic when I get a little time.  From an initial glance though it seems like you’ve touched on some critical themes of Christian ethics, one of which is that ethics is never primarily about individual decisions, but about moral formation.