This year, Supreme Court Justice Clarence Thomas finally broke his seven-year silence, but only by cracking a joke that even the stenographers were unable to comprehend. He spends most Court hearings lounging around in his leather chair, staring at the ceiling. Apparently he is listening, but for years observers of the Supreme Court have wondered what he is thinking, what motivates his judgments and why his opinions seem to get ever more conservative.
Last week we were able to witness a Justice of entirely different temperament, when his colleague Justice Sonia Sotomayor presented her memoire, My Beloved World, in Berlin.
Justice Sotomayor is an avid storyteller and doesn’t particularly like to sit still. She paces through the lecture theatre conveying valuable life lessons. She presents her biography as an aspirational and discipline-driven rise to top, albeit characterising herself humbly as a “baby of affirmative action”. Sotomayor is the driving force of the liberal wing in the Supreme Court. She is as much an activist as a judge, and even if this enrages her colleagues, she sees no reason to attempt a separation of the two.
Neither Sotomayor nor fellow Supreme Court Judge Clarence Thomas is white. Both of them studied at Yale Law School and both were appointed to the highest legal office. But in the chambers of the Supreme Courts they are antagonists in a political battle between Democrats and Republicans that concerns, amongst other things, the correct interpretation of the Constitution. Thomas is an “originalist”: he would like to see the Constitution restored to the meaning it had in 1789. Sotomayor on the other hand, believes in “transformativeconstitutionalism”: the historical interpretation of the Constitution cannot be static and must consider the evolution of the meaning of the text and the rights inscribed in it. The Constitution is a seen as a „living document“ that has endured new interpretations, given birth to new rights and rid itself of some of the unequal privileges once afforded to the old white men who were its original authors.
When considering questions of race and equality, both of the Justices’ readings of the Constitution is inextricably linked to their politics, which is a direct result of each of their interpretations of the events of their life.
According to Thomas, he suffered immensely under the stigma of affirmative action. Throughout his time at Yale he felt like an outsider and a guest, and later his competence as a judge was often questioned for the same reason. For Sonia Sotomayor affirmative action was merely a chance, an opportunity like any other. “I don’t have to be ashamed for what I achieved after I got given an opportunity“, she explained.
Neither Sotomayor nor Thomas are known for viewing the world through rose tinted glasses; nor have they ever denied the on-going existence of racism in their own country. But their conceptions of what the law ought to be and what it ought to achieve are violently opposed. The ‘beloved world’ of Sonia Sotomayor needs to be actively transformed into one of equality and equal opportunity: “(…)race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.” Clarence Thomas firmly believes that this world will never exist: “Racism is so profoundly inscribed in the white soul that you also have to dig deep in order to see its full extent. (…) The overt bigotry of the South is merely the surface; its true depths are to be found in the North […] in the genteel white smiles of liberal institutions like Yale Law School.”
Thomas perceives racism as a purely ethical question. To relate questions of racism to issues of class and socioeconomic disparities would be a progressive position, but Thomas is not progressive and is said to be the most conservative judge on the bench of the Supreme Court. Here again, his method of interpretation is the result of personal experience. His grim determinism and ideas that America will always be a country of racial segregation is in line with his interpretation of the constitution, not as a living document, but one that is very much „dead“ and legally barred from resurrection.
Does one need to be familiar with the politics and biography of judges in order to understand their judgements and opinions? “What does it matter who is speaking, someone said, what does it matter who is speaking?” Samuel Beckett once said, alluding to the utopian dream of absolute objectivity – the possibility of separating of work and author.
Such objectivity may seem aspirational when faced with scientific or abstract questions, but impossible when it comes to issues of moral or personal concern. Thomas and his colleagues are capable of making entirely logical and coherent arguments to suggest or even to prove that affirmative action does more harm than good. Sotomayor says that it is her duty to respect and tolerate these views. But she could never entirely accept them. Her objection runs so deep that it inspired a 58-page dissent containing not only every possible political objection but all of her personal experiences with affirmative action as well.
Judges that claim to be objective and demand impersonal debates behind the bench, may not be, as Sotomayor says “out of touch with reality”, but their realty is wholly different and equally subjective. It is usually the perspective of a privileged old, white man that has never had to question his place in the great American society. True objectivity is impossible.
Towards the end of her book presentation, Sonia Sotomayor seems somewhat resigned. A member of the audience has asked her about the brutal and inhuman death sentences in Alabama. Sonia Sotomayor fakes the slightest smile and says: “True change has to come from the people.“ (…) „You cannot expect judges to be the final arbiters of right and wrong.“