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Constitutional Law

By Edited Nov 13, 2013 0 0

Should the Supreme Court look more like America? Was the question on the cover of the Christian Science Monitor. There was a drawing of blindfolded justice peeking with one eye at the justices on one side of her scale, and some American's balancing the other side. With only nine seats, it would be impossible to represent everyone. And even if there were mixed race justices, and gay justices, in an attempt to cover more bases, such an approach might create over representation. After all, are really one in nine people in America gay? Could you find a justice who was "just a little gay" ? The question becomes quite academic.

For one thing, it presupposes a black man like Thurgood Marshall, former supreme court justice would be incapable of representing me. After all, he's male and I'm female. He's black and I'm not. He was old (and is now dead) and I am only middle aged. He was educated with a law degree and I only have a BA. He was married and I am twice divorced. And yet when I look over his court decisions, and his interpretation of the law, the American constitution, I think he represented me better than any other justice before or since.

What about the female justices? Because I am a woman, should I feel that the new "wise Latina" on the court represents me? I don't see how. I've never been Latina. I don't speak Spanish. I have no common ground with her experience in America. Yet, I support her nomination if she is the best person for the job. It would be nice to see justices who want to do what the post was created for: not for writing new laws, but for interpreting, as best they can, the intention of the founding fathers. Congress has the job of writing new laws. The president can override or Veto them. The Supreme Court was not created to be in the business of creating new laws. IT was created to have the final say so on cases that appealed up to it.

I remember reading a opinion written by Justice David Souter, in which he went outside of American law and found some examples in foreign laws. I felt intensely annoyed by that practice. All bets are off, I thought to myself, if he is going by his personal opinion, clearly exiting his scope to bolster his opinion. In this case, I would argue, that YES, the Supreme Court "should" look more like America, "should" limit its scope and opinions to those perceived of in American Law.

What would it look like to routinely find precedent in foreign law? Would we decide the Hindu practice of burning widows on their husband's funeral pyre is a good idea? Should we make allowance for "shamed" Asians who need to run "amok" or commit seppuku, because their culture demands it? Or what about genital mutilation, common in some African cultures. Is it right, is it correct, to accept the cultural practices of other peoples as we move toward thinking "globally"?

I think some people might find allowing Mennonites to practice their social withdrawal ok for their culture. If they don't want to dress the same as others, or practice peculiar habits, what is the harm? But what if people outside of the culture, a regular European white person decided to practice "sati" and burn his mourning sister-in-law on his brother's funeral pyre, would it be acceptable? Would it be alright if we found out the whole family had lived in India? Would it be alright if we found out the woman was dragged against her will, kicking and screaming, fighting for her life?

Maybe the court doesn't need to look anything like "America." Maybe they could do their best to uphold the laws we have in a dignified manner. We really didn't want to know about Anita Hill and Clarence Thomas. Maybe we are tired of shocking revelations and bad behavior. How about we find someone with common sense, a research oriented mind, and an articulate nature. That would be good. That would be awesome.


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