Sotomayor's Indignation: You Be the Judge!


I was scrolling through Google Reader last night and came across two articles in the Huffington Post feed that caught my attention.  The first (originally from Reuters) is about a case that was denied acceptance before the Supreme Court.  The case was denied on technical grounds, but the aspect that stole the story was that the prosecutor posed a racially charged question to the defense, infuriating Hispanic Judge Sotomayor and leading her to write a statement accompanying the case’s dismissal. 

 The Texas prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you – a light bulb doesn’t go off in your head and say, this is a drug deal?”

 Sotomayor wrote that the prosecutor had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”

 I then saw another story an article or two down (also from Reuters) about John Kerry talking to students in Berlin on his inaugural trip as secretary of state. 

 Reuters writes:

 U.S. Secretary of State John Kerry offered a defense of freedom of speech, religion and thought in the United States on Tuesday telling German students that in America “you have a right to be stupid if you want to be. […] As a country, as a society, we live and breathe the idea of religious freedom and religious tolerance, whatever the religion, and political freedom and political tolerance, whatever the point of view.”

 Kerry goes on to say:

 “People have sometimes wondered about why our Supreme Court allows one group or another to march in a parade even though it’s the most provocative thing in the world and they carry signs that are an insult to one group or another. […] And we tolerate it. We somehow make it through that. Now, I think that’s a virtue. I think that’s something worth fighting for,” he added. “The important thing is to have the tolerance to say, you know, you can have a different point of view.”

An Inalienable Right

 This is a radical idea in Western Europe because many countries there have hate speech laws.  Germany, for example, has a maximum penalty for up to 5 years for any ethnically or religiously motivated public aspersion, be you citizen or tourist.  This is attributed to a stipulation in their constitution, which is intended to protect “human dignity.”  It can punish everything from calling one ethnic group ‘freeloaders’ to Holocaust denials. 

I take a similar stance to Kerry regarding free speech, one which Christopher Hitchens shared and  articulated beautifully.  Hitchens writes that the first amendment “commits us to an unshakable principle while it obliquely reminds us that absolutism is what the freedom of speech makes impossible.”  Despite the inconvenience that comes with, not merely arguing, but offending one another’s deepest, most treasured ideas and sensibilities, it remains the most fundamental aspect of our humanity.  It is the part that makes thinking meaningful–the part which allows for personal and social change.  

 I think the efficacy of Europe’s hate speech laws are somewhat dubious.  While they may keep the peace in public, it turns ethnic resentment into a quiet tradition, and validates the attendant suspicion of government or Zionist or whatever-ist conspiracies to control the media or administration.  Free speech laws make an enemy of the opposition, not the government, and however slowly, one side will effectively win out over another.  Judicial or legislative action is a provisional seal to debate, but to forbid discussion and debate itself through law is an untenable fix.  Even in the form of hateful picketers or pundits shouting past one another, it is essential that that conflict play out.  


What struck me at first was the irony that at the same moment we were touting our unalienable and absolute freedom of speech to young Berliners, a Texas prosecutor is censured for harboring racist sentiments and offering them up as argument to the highest court in the land. Granted, the merits for considering a criminal case are quite different from those, say of a case about legalizing same-sex marriage.  The demand for proof in a criminal case should be tighter than black/Hispanics–bag of money–guilty.  Which is why Sotomayor’s characterization of the prosecutor’s reasoning as“pernicious in its attempt to substitute racial stereotype for evidence” rings true, but the fact that such a case could rise to such a high court is indicative of the fact that the prosecutor’s opinions were shared by enough jury members to reach the Supreme Court. The article gives little more detail about the case, so I am unaware if the prosecution’s case absent that remark would’ve held up, but the question I find more compelling is, ‘is Sotomayor protecting the public from its own moral appraisal?  Its own opinion?’ 

The defendant’s argument was essentially that of Sotomayor’s, saying that his right to a fair trial was compromised when the prosecutor argued that his race was, at least in part, a basis for determining his guilt.  The case was dismissed irrespective of Sotomayor’s complaint because that claim was not officially raised in a lower court, but it brings me to the larger question of the Supreme Court’s political role and the way in which it bumps up against free speech laws.  

Let me make clear that I am in no way validating the connection the prosecutor made, but am interested in what the apparent limits of free speech are in the U.S. and how much the judges’ moral discretion should impose upon a system which serves the public.  

Kerry spoke of tolerance of speech, and religious tolerance, but what about tolerance of bias–or tolerance of intolerance?  Contemporary debates often struggle with this, for instance the same-sex marriage debate.  Religious conservatives believe they have not only a right to marriage, but also the right to circumscribe an institution that can be officiated by a federal employee and therefore capable of being devoid of religious association.  An institution which, when recognized by law carries many benefits and privileges otherwise denied the partners.  For the moment, the opinions of those who claim to defend marriage are those accorded the most respect in legal terms and is the clearest modern example of how current law tolerates the intolerance of those who favor unequal application of the law because of a moral objection.  

Sotomayor in this case also expressed her moral objection, but by quashing the intolerance.  She didn’t prevent it from reaching jurors ears or even affect the case, but she responded with an official public rebuke.  Public disgust of racial intolerance or even racial suspicion is quite high in much of the country, and makes Sotomayor’s reaction fairly uncontroversial.  What I find unsettling is not her objection, but the fact that she (or any justice) feels comfortable being the arbiters of moral rectitude in one case and not the other.  How easy it would’ve been (and was) to make the case that interracial marriage disgusted the religious sensibilities of many Americans before 1967 and that that was reason enough to privilege the rights of some to superintend the social makeup of the U.S. rather than extend a right already enjoyed by same-race couples.  Overturning illegal interracial marriage, at the time, however was very controversial; 20% of the public approved.  Gay marriage has twice that support today and only recently have they elected to take on a case.  

 Judgment is inexorably a political act.  Not an inviolable act, but converting opinion to law, however long one listens to deliberations or contemplates a case, is a forceful act, one which the public both demands and resents.   A judge effectively decides which party has a right to and which party is obliged to respect that right for others.  The fact that laws are always subject to amendment gives even the most stalwart bigot or (as I’m sure it did) hapless slaves some hope, and what makes the right to freedom of expression such an ingeniously designed concept.  It is also what makes the commitment to freedom of expression easy to make.  It entails nothing, but alludes to infinite potentialities.  American bigotry may remain a tradition, but it is more reacted to rather than actively suppressed.  Hate dies through indifference, not attention.  Laws against hate speech, have the opposite of their intended effect, and not only attract attention, but make those under its heel feel all the more righteous.

Judges understandably prevaricate when asked about how they are influenced politically or how they are influences themselves, but it is obvious that not even they are buying it.  We, however, accept that reality and pardon their false piety because they are tasked with something that is essentially impossible to do.  It is a paradoxical act, permitting a group of people free expression but denying them their ability to turn opinion into reality.  It is a profound and potentially dangerous power, and arguably undemocratic, but the Supreme Court is not a pollster.  If we are going to have educated people take the time to learn philosophy, and understand the law in a nuanced way, they can occasionally tell people that they are wrong.  Legislators do it all the time and how educated are they?  I don’t hold Judges in any particular esteem, however.  Their right (and ability) to be stupid has been well demonstrated and I’m not calling for a presiding intelligentsia to make us vegans and separate us from our children at birth, just that they call people out when the reason speciously. Not absolutism, but not impotency either.  
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Author: The Blue Route

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