By Ashley Mitchell • July 05, 2014•Writers in Residence
For the last two posts, I have been engaging in a conversation about the importance of considering the humanity of individuals in the pursuit of legal objectives, whether those pursuits are in the academic or professional environment. The first post discussed why I took up this issue; it is spiritually disturbing to live in this modern era and to still have to witness an individual plead their right to be treated like a human being – to be left alone when they are not harming anyone or anything, or argue that their life and existence has value. The second post attempted to explain what pleading one’s humanity means as well as what it looks like.
This last post in the series attempts to advance the ideas in Parts 1 and 2 – to drive home how human interactions enhance our personal and professional transactions and as result improve the legal profession – in academia and in practice.
U.S. Supreme Court Justice Sonia Sotomayor’s dissenting opinion in Schuette v. Coalition to Defend Affirmative Action is, in my personal opinion, one of the most illustrative, contemporary examples on record of how practice in our profession is not and should not be absent of the entirety of our learning experiences, which includes those experiences from which we learn from human interaction.
In Schuette, the Court held that an amendment to Michigan’s state constitution (“Prop 2”) that prohibits race- and sex-based preferential treatment (affirmative action) in the admissions decisions of public universities does not violate the Fourteenth Amendment’s Equal Protection Clause. Justice Ruth Bader Ginsburg joined the dissent, and Justice Elena Kagan recused herself from participating in the decision. In Justice Sotomayor’s dissent, she carefully depicted how affirmative action has led her to her current career. One can assume for that reason, she assessed Michigan’s ban on affirmative action as a burden to racial minorities, in particular (as synopsized by the The N.Y. Times): “Children of alumni and students from underrepresented parts of the state remain free to try to persuade university officials to give their applications special weight.” Justice Sotomayor concludes, in the actual dissent that, “the one and only policy a Michigan citizen may not seek through this long-established process,” she wrote in her evaluation, “is a race-sensitive admissions policy.”*
Justice Sotomayor’s dissent reminded me much of a blog article written by my law school classmate, Jane Jankie, for Ms. JD about two years ago. In the article, Jane reflected about the unexpected challenges that she faced during her law school experience. She primarily related about her personal background, her in-class experience discussing the infamous People v. Goetz case, and her participation to the class discussion, in which she brilliantly related how her personal background contributed to her assessment of the case.
Notice that I did not use the word perspective or point of view. Those words tend to paint a legal practitioner or a jurist as biased in nature, and thus lacking credibility as opposed to terms such as assessment or evaluation, which connote informed, credible decision-making. (I should mention, however, that in any case, it should be no controversy that our experiences inform us). This type of contribution to a legal discussion should not be something upon which to disapprove or to be dismissed as a mere passionate form of self-expression. Race matters, sex and gender matters, sexual orientation matters, and all of these and other markers of identity matter because human beings, how they identify themselves, and the baggage that their identities bring matters.
In fact, this is the basic presumption of the argument for more diversity on the federal judiciary. It is not that a diverse group of judges can bring different personal opinions to the bench, but that a diversity of human beings who sit in judgment of a diversity of human beings can bring a variety of assessments and evaluations in order to make better sense of our legal doctrine. Furthermore, it is the hope that diversity in the judiciary can satisfy gaps in reasoning and give practitioners, and American society, a more accurate idea of the standard of behavior that is acceptable, whether civil or criminal, and which is more fairly applicable to us as individuals, taking into account our varying identities. It is my understanding, and my conviction, that diverse members of the court and of the Bar offer a larger variety of perspectives that could give old yet vague ideals more robust meaning, or to introduce alternative or even novel evaluations of the law that are more appropriate for the times in which we are living.
Take for example, Justice John Harlan’s opinion in Plessy v. Ferguson. It was Justice Harlan’s assessment that, “the arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.” He added that, “the thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done....”. It is unmistakable that the spirit and logic of his lone dissent contributed to the underpinnings unanimous majority opinion in Brown v. Board of Education.
Plessy is one of the most well-known cases in American history, meaning that it has been discussed, written about, and interpreted to such a degree that I was hesitant to use it as an example here. But I digress. In any case, while the makeup of the court in 1896 does not fit our current perceptions of diversity, our current perceptions of what diversity is, and applying it to the then Fuller court, more than likely would not have rendered an 8-to-1 decision. In fact, diversity on the court could have brought about the right decision as early as 1896 and would have publicly validated the humanity of an entire class of people, instead of denying said humanity.
I am aware that this reasoning is a bit circular. For if there was diversity on the court, it probably would have reflected a world where Plessy v. Ferguson would have never been brought - which is my actual point. Diversity should be a deeply embedded American value for this very reason - to guard against such missteps against humanity.
As we continue to wrestle with the ideas of what encompasses the terms adequacy, equality, fairness, and justice, in tandem, it is becoming increasingly important to extol the mutual benefit of diversity and also to expand our concept of diversity in the field. U.S. Supreme Court Justice Elena Kagan has not been shy in addressing this notion. Justice Kagan, for instance, has publicly stated that the Supreme Court is a “very coastal, urban and elite law school court," as The Tuscaloosa News writer, Ed Enoch, points out, “alluding to the Yale and Harvard pedigrees of most of the jurists, who are also predominantly from communities on the East or West coasts.” Justice Kagan further remarked, "that seems kind of crazy to me and not a good thing,” and for that reason, the Court, she stated, as a public institution, may lack credibility.
Likewise, it is important to remember that diversity is only a piece of the puzzle to ensure that legal jurisprudence, which is intended to endure a-many different factual circumstances, is able to do just that. For this reason, it is our responsibility to expose ourselves intimately and genuinely with the culture, the values, and the life circumstances of others; and not in order to reinforce our own current views, but to challenge those views without regard for whether they survive or not. This exercise does not distract us from the practice of law, but instead enhances us personally and is the touchstone of the greatest, most profitable, and beloved of legal practitioners.
* “As a result of section 26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.”