How We Are Made

Back in May, Jeffrey Toobin wrote an insightful piece about Chief Justice John Roberts, in the May 25, 2009 issue of the New Yorker. His conclusions, which are harsh to someone who has studied the court and its role in American society are clear, and accurate:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Where did this understanding of the role of the Supreme Court derive? Despite protestations to the contrary, Chief Justice Roberts who is personally youngish looking, handsome, and quite charming, although alarmingly combative in his questioning from the bench during oral argument, is the product of his upbringing: Catholic family where his father was an executive and his mother a homemaker; private boarding school; Harvard College; and then Harvard Law School. He is white, he has always been conservative, and he was groomed through various positions within Republican administrations.

His lack of empathy and his seemingly unrepentant support for the status quo, which means keeping white men in power (his votes and decisions on race issues, especially are disturbing), are the product of the circumstance of his birth, and he brings that to every decision he makes on the bench. That he is a white man, born into privilege, is never discussed until it is compared with the narrative of someone like Sonia Sotomayor, Obama's nominee for the Supreme Court vacancy left by the resignation of David Souter.

This is an example of how race is invisible, along with all of its privileges, if one happens to be white and male. No one ever speaks about how race has provided these men with opportunities unavailable to most others. We can't allow these assumptions to remain invisible, and must, especially as debate on the Sotomayor nomination begins, keep annoucing to the country and to our elected representatives that we know the source of their power.

Sonia Sotomayor represents true meritocracy, unlike the wunderkind John Roberts. She battled where he glided. And we need people who have fought these kinds of battles for respect, position, and success to hear the stories of people, not just corporations, but people, too. The Supreme Court is not an umpire, but a policy maker, and let's never pretend that it isn't.