Points that Micah raised in his second essay floated through my mind as I listened to Justice Mary Yu speak at Whitworth last week. Justice Yu is one of six women on the Washington State Supreme Court. Her mother was a Mexican immigrant who came to this country illegally then naturalized; her father was a Chinese immigrant who also came to this country illegally then became a citizen. Justice Yu is also the first openly gay member of the Court and a member of the Catholic Church. Her undergraduate and graduate degrees in religious studies are from Catholic institutions, and because she wanted to study law within a context of religious values she attended Notre Dame Law School. She is the first Latina, Asian, LGBT member of the Washington State Supreme Court.
Micah wrote in his essay that he was not sure “what specific political wisdom or positions one can expect from listening to various people groups defined by what Kathy refers to as socially constructed identities.” I thought about that statement as I listened to her. My hunch is that while Justice Yu would not be so arrogant as to claim to speak for all Asians, all Latinas, all members of the LGBT community, I think that she would say that others might gain some wisdom, even political wisdom, from listening to her stories about her life and, in particular, her experiences of discrimination based on socially constructed identities. She also would add that her judicial decision-making is constrained by the rules of construction and stare decisis that confine any judge. Micah rightly points out in his essay that somehow I do not embrace the idea of “false consciousness.” That said, to suggest that because no one woman can speak for all women or no black citizen can speak for all black citizens, that no group is monolithic in its views does not mean common experiences cannot form a common narrative. I do not agree with the binary that Micah suggests. What I am suggesting is reflected in this statement by Justice Ruth Bader Ginsburg:
"A system of justice is richer for the diversity of background and experience of its participants. It is the poorer, in terms of evaluating what is at stake and the impact of its judgments, if its members—its lawyers, jurors, and judges—are all cast from the same mold."
Micah is absolutely correct to point out the diversity of women’s voices, that no one group can speak for all women. In fact, in my class, Women and Politics, I require students to read, Righting Feminism: Conservative Women & American Politics by Ronnee Schreiber, an in-depth look at two conservative women’s groups, the Independent Women’s Forum and Concerned Women of America. I also have them read Melissa Harris-Perry’s Sister Citizen about the identities and stereotypes of black women in America and the intersectionality of race and gender. No student leaves that class thinking all women think alike. I know all women do not speak with one voice. That said, historically, unequal pay for the same work, limits on employment opportunities, sexual violence, and the effects of being the only sex that can bear children have provided women some common, sadly hurtful, experiences. Ironically, the fact that women do not speak with one voice suggests that more efforts should be made to have the federal judiciary have more women on it.
Micah and I differ regarding our views on representation and the judiciary. Micah writes, “The Supreme Court was not designed to represent the people of the country.” And he rightly points out the elitism of the educational backgrounds and social backgrounds of justices, although I would suggest that Justice Sotomayor differs from the other justices in terms of wealth. I am not at all asserting that a justice represents a constituency in the same way elected representatives do. What I am suggesting is that it matters that candidate Ronald Reagan promised that he would appoint a woman to the Court and that President Reagan fulfilled that promised when he appointed Sandra Day O’Connor to the Court. She would have been the first to say she was not representing women qua women, but did it not matter that she was appointed? Representation can mean and signal many things, and one of the things it can signal is now a woman could aspire to have a seat at the conference table and sit on the bench of the most august court in this country. Did it matter that someone who had gone through pregnancy and borne children now was present at discussions about abortion cases? I would suggest yes. And studies of O’Connor’s decision-making suggest that her experiences as a woman affected her outlook. Justice O’Connor herself noted the importance of a diversity of backgrounds on the Court when she paid tribute in 1991 to Justice Thurgood Marshall, the first Black justice, upon his retirement. She wrote,
"Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and the established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice. At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth."
Studies of Justice Clarence Thomas’s jurisprudence suggest that his racial experience informs his perspective, again a perspective that is important to have on the Court.
Because the Court is unelected and the justices possess life tenure the Court’s legitimacy in a constitutional democracy is sometimes contested. I would suggest that the legitimacy of the Court is enhanced when it the Court looks more like the population. I am not suggesting that the Court needs to exactly mirror the population. Former Justice Mary Jeanne Coyne who sat on the Minnesota Supreme Court asserted, “[A] wise old man and wise old woman reach the same conclusion.” But Justice Ruth Bader Ginsburg, while agreeing with Justice Coyne, did add: “ [I]t is also true that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what . . . [is] fittingly called ‘a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.”
I recognize that Brown v. Board of Education was decided with no Black member on the Court; I also recognize that the Obergefell decision was decided with no openly gay member on the Court. That said, there is something to be said for symbolic representation when a group in our society can look at the Court and say there is someone who is like me, like me in an identity that has historically been stigmatized and marginalized.
After listening to Justice Mary Yu tell her life story, I thought about symbolic representation. The room was packed with students and after she finished many students stood in line for the chance to talk with her and have their picture taken with her. Some were white students, but many were students of color. Many students were female. Some students who had their picture taken with her are gay. As I observed their interaction with her, there was no doubt in my mind that her identities mattered for them, that someone had reached this position of influence who had experienced some of the same things they have experienced. One faculty colleague who was there commented on Justice Yu’s “Christ-like” nature as she talked about her commitments and faith.
I suspect that this conversation Micah and I have had has taken a turn that perhaps Harold was not expecting. Obviously Micah and I write out of our different disciplinary specialties. I have appreciated Micah’s reminders about the role of courts and also the dangers in assuming that groups based on certain identities ever speak with one voice and for his pointing out the ways in which we agree. So, thank you, Micah, for engaging in this conversation.