Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope 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 hasn't lived that life.Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
Now two observations:
1) There is no claim whatsoever to inherent racial or sexual superiority of Latinas/Latinos over Anglos or of women over men. Judge Sotomayor does not say that race or sex confers any superior abilities. The notion that this is somehow a racist statement is just ridiculous.
2) There is also no claim of inevitability. Speaking not of all decisions but in particular about cases involving claims of discrimination, Judge Sotomayor says only that she "hopes" that the experience of being part of a minority group will lead a "wise" Latina (note not all Latinas, but just wise ones) to make better decisions about such cases than a member of the dominant group, even as she acknowledges that it is possible for a white male judge, with sufficient effort, to appreciate the impact of discrimination on the out groups.
These points, in my view, fully rebut the hyperbolic claims of the conservatives who have seized on this language as somehow disqualifying. However, I'd like to raise a different point that is of more academic interest. To the extent we can generalize, Judge Sotomayor seems to be saying that the experience of having been oppressed leads people to be more sensitive to the oppression of others. It's not entirely clear whether she means to say that a member of any out group will therefore be sensitive to the oppression of members of every out group, but I think that is a fair inference, and even if that's not implied by Judge Sotomayor, it's a commonly held view.
A version of the view dates back to the great Greek tragedians. The chorus in Agamemnon says "man must suffer to be wise," and the chorus in Antigone tells Creon that suffering is the schoolteacher of man. Now, Aeschylus and Sophocles weren't exactly saying that suffering breeds sympathy for the suffering of others, but something like that view is implicit, and the point gets picked up especially in Christian ethics that extol the poor and the meek as virtuous.
Still, I have my doubts. The experience of oppression can as well lead either to a kind of survivalism in which the oppressed, of real or perceived necessity, look out only for their own good. Or a group that is relatively oppressed may resent other oppressed groups as competitors for resources and status. Many historians attribute the weakness of the American labor movement to the fact that poor white workers were unwilling to join a multi-racial coalition with African Americans. The exploitation of the poor whites left them, not sympathetic to African Americans who were in an even worse position, but wanting to make clear their own higher social status. More recently, I think it is not entirely accidental that support for same-sex marriage and gay rights more broadly is less widespread among minority groups than among whites.
So the experience of being on the outs can lead one to be more sympathetic to other out groups, but the effect is hardly inevitable.
Posted by Mike Dorf