Race and Non-Race on the High Court





Mr. Balto is a graduate student at the University of Wisconsin-Madison, with appointments in the African-American Studies and History Departments.

In the infant stages of our first black presidency, these are interesting days indeed for trying to understand the meanings of race and American racism.  One of the more recent, prominent issues encompassed within this debate is the conservative uproar surrounding (and Democratic backpeddling from) Supreme Court-nominee Sonia Sotomayor’s comment that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who wasn’t lived that life.” For pointing out that “our gender and national origins may and will make a difference in our judging,” Sotomayor was branded a racist and was accused of possessing less-than-clear-eyed judgment professionally.  Typical was Republican sage Newt Gingrich’s knee-jerk response that Sotomayor’s views represented a “new racism” that was “no better than old racism,” which was later (pseudo) qualified thusly: “[T]he issue here is not racial identity politics. Sotomayor’s words reveal a betrayal of a fundamental principle of the American system — that everyone is equal before the law.”

Gingrich’s comment here is symptomatic of the larger conservative movement to claim the discursive context of the race debate, a complicated project that involves white-washing the body politic and erasing race as the historical and contemporary force that it is.  Grasping and twisting the scientific logic that acknowledges race as a social construct rather than biological certainty, the conservative thrust now is to wield that as a discursive trump card: race is a construct—this argument goes—therefore, everyone is alike and all things are equal (one may find this most overtly in efforts to strip affirmative action and welfare rights).  Yet, in acknowledging the social construction of race, there is a tangible danger in simply sufficing to say that “race doesn’t exist”—namely, that those infrastructural systems that are set up to combat discrimination and racism are fundamentally destabilized.  In reality, the stamp of race and American racism has left an imprint on virtually every page of national history, and the notion that we can suddenly “move past” that history is extraordinarily ludicrous.  But there’s more to this than simply the broad disregard for the centrality of race within our national history, and the current disparities in access and experience that that history has birthed.

When Sotomayor suggests that her experience as a Latina woman would afford her unique—and indeed, perhaps “better”—conclusions on certain issues, the pillorying that follows shows something truly remarkable about how her critics understand race.  Allowing that our lived experiences and cultural backgrounds are inflected in each of us and influence how we understand the world and decisions that we make (regardless of our occupations, locations, or other circumstances), one would assume that every judge’s experiences bleed into their decision making, at least to an extent.  So why the uproar over Sotomayor’s acknowledgement of what is almost certainly a commonality between her and her peers?

 The Supreme Court’s history is, with precious few exceptions, a history of white men, and it is perhaps in the intersection between that history of the Court and Sotomayor’s personal one that the crux of the issue is found.  White maleness is inscribed as normative in this instance, and thus functioning as the standard, it gets a free pass on the “objectivity” question: the high court has always been run by white men, so as a normative entity, their decision-making is presumed rational and unencumbered because of the historic continuity of its demography. Once they—as white men—are enveloped within this normative framework, the forebears of today’s Court are no longer individualized actors operating within their own lives and experiences, but rather, as the race- and gender-neutral standard to be used to measure others against.  Both Sotomayor’s Latina heritage and her femaleness, then, mark her outside this standard: whereas her predecessors were presumably always, in some ways, influenced by their white maleness, that influence was never recognized as such because it was seen as normal.  To be white, then was to be non-raced.  Sotomayor’s forthright assertion of her gender and racial heritage, by contrast, lies outside of this normative framework and thus, to many, appears noteworthy and problematic.

It is not simply an abstraction to suggest that race and racism have had deep impacts on previous incarnations of the Court, even when it was the exclusive domain of white men.  To cite but a few of the more well known examples, lest we forget, this is the same body that passed down the infamous Dred Scott decision, in which Chief Justice Roger Taney remarked that blacks had “no rights which the white man was bound to respect.” Decades later, the Court upheld the legality of segregation in Plessey v. Ferguson, in which it passed the notorious “separate but equal” doctrine.  Even in striking down (in part) that ruling a half-century later in Brown v. Board of Education, the court failed both to fully articulate segregation as fundamentally illegal beyond the context of the schools, and to offer any tangible enforcement methods for desegregation. (Indeed, the Court would be forced to later revisit the case in order to correct the enforcement issue, in a case known as Brown II.)

Furthermore, tt would seem, even now, that we have enough daily reminders that race still matters to caution us away from launching into ill-advised and manipulative articulations of color-blindness.  Just one recent example is the pending lawsuit between Wells Fargo and the city of Baltimore, in which the city is suing the bank for blatantly racist lending practices that resulted in huge numbers of foreclosures.  Though from the look of things, this story won’t be the only one of its kind, it is nonetheless gut-wrenchingly awful, complete with explicit racism (Wells Fargo employees referring to African-Americans as “mud people”) and heartbreaking loss (the destruction of both community and family equity).  Similarly, rising xenophobia toward immigrant workers and the “Arab world,” and accounts of racist vigilante violence, suggest that race still not only matters, but is of paramount importance in understanding the problems we collectively face today. 

Returning to the nomination of Judge Sotomayor, it is not only impossible to ask that she separate herself from this social context and her own background as she makes her legal judgments, but it would also be ahistoric to suggest that her drawing upon that context and background would be somehow aberrational within the broader history of the Court.  In discussing how Sotomayor’s race and gender background affect her professional judgment, it is crucial to not mark her as “raced” or “gendered” simply because she does not conform to the normative “white male justice” mold.  This conflation of “whiteness” with racial-neutrality is extraordinarily dangerous (though it carries heavy historical precedent) for the way it marks non-whites as “other.” If we can move past that rendering, and understand that every one of us is—and has been—affected by the racial discourses swirling around us and by our own racial and cultural background, then we can perhaps work toward both a more inclusive, realistic conception of the Court and a more equitable vision of American society.

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    Charles Lee Geshekter - 6/23/2009

    I am not sure if Sotomayor is a racist or not.

    But based on her frequent statements and recent opinions, she clearly believes in and accepts racial, gender and ethnic stereotypes.

    In his essay, Simon Balto refers to some "normative 'white male justice' mold" that Sotomayor apparently stands outside of.

    Are there are certain things that a "wise white male" must know that a Latina woman cannot or will not know? What exactly are those things that we should identify as important in the choice of a Supreme Court Justice?

    Finally, can Sotomayor and her defenders identify for me three vitally important characteristics that Scalia, Alito, and Kennedy have in common? No racist or sexist generalities, please.


    Steven F. Sage - 6/22/2009

    << to them, others were ethnic, while they were, I suppose, regular. >>
    If Professor Loewen's (so-called) "white" undergraduate students construed the words "ethnic" and "ethnicity" to refer to categories other than the so-called WASP group, they would merely be reflecting the now-standard mainstream media usage of those terms to exclude persons of "WASP" identity. The students, after all, do not hold doctorates in anthropology.
    But perhaps some of these students privately bridled at the very notion of being asked to commit to one or another ethnicity, and hence resorted to a non-committal "none".
    Professor Loewen further proposes (or "supposes") that the students drew a dichotomy between "ethnic" and "regular" (the latter being the professor's own term). However, if students were in fact to use the term "regular" it would be understandable, given the choices as deemed by such authorities as the U.S. Census. The prevalent, pervasive multi-cultural ideology and practice has usually lumped many disparate groups into a broad and artificially construed "white" category without any finer official subdivision. So-called "white" students aged 19 or so will thus have been assigned to that category from kindergarten on up through secondary school, i.e., their entire sentient lifetimes. Does Professor Loewen "suppose" that after years of inculcation, these students should think any differently?
    But suppose there were students who did think differently? Does the professor "suppose" that on Day 1 of a race-relations class, any private dissidents among them would dare to openly protest arbitrariness in the way these categories have been set?


    Mark Reitz - 6/22/2009

    What is the definition of racism that is being dealt with? Were a white male to state "a wise white man with the richness of his experiences would more often than not reach a better conclusion than a member of a minority community", would that be racism?

    The comment by Sotomeyer was not a singular statement, but one she has repeated over many years. Does she, herself, believe what she says? Is that a form of racism? Are there two different standards for what is racism?


    James W Loewen - 6/22/2009

    When I taught race relations at the U. of VT (trust me -- a white environment), I handed out a little one-page form on the first day of class, asking things like name, age, sex (gender), race, ethnicity, probable major, etc.
    A sizable % of white students replied "none" to the question on ethnicity. They were, of course, WASP, but to them, others were ethnic, while they were, I suppose, regular.