Factors inform but shouldn't determine decisions

No religion, gender or ethnicity disqualifies a person from becoming a Supreme Court justice, but how should a particular judge's life experiences -- including faith, gender or ethnicity -- inform his or her judicial rulings?

A justice's faith, gender and ethnicity--and life experience generally--will influence his or her view of the world and the law. But these should not dictate a justice's decisions and reasoning when interpreting and applying the grand precepts outlined in the Constitution and the Bill of Rights. Inform, yes; determine, no.

Justices should make every effort to decide cases based on constitutional and statutory language, historical context, court precedent, and the facts of the case. But original intent is always elusive and language is not self-defining. What does "due process" mean? How about "cruel and unusual punishment?" The Court grapples almost every term with the meaning of "establishment of religion." The nine justices proceeding in good faith and trying to be fair will often split 5-4 and sometimes write eight or nine opinions disagreeing over reasoning.

Easy talk about "calling balls and strikes" and "interpreting law, not making law" is just that--easy talk. The High Court does not deal with a set of wooden civic club bylaws; it interprets sweeping constitutional principles and often vague statutory language. Charges of "judicial activism" can be applied to both sides and mostly describes an opinion one disagrees with. What one agrees with is an example of judicial statesmanship!

So, yes, at the Supreme Court level, life experience, philosophy and worldview matter. They all go into the mix of judicial decision-making that helps the justices understand, interpret and apply constitutional principles and statutory language. It is worth noting, however, they do not always matter in the same way. Justices Brennan and Scalia are both Catholics; Justices Ginsburg and O'Connor are both women; Justices Thomas and Marshall are both African Americans. But they often came to vastly different conclusions.

To carry the sports metaphor a little farther, as someone said, the best of umpires have slightly different strike zones, even though the rule about three strikes and you're out is strictly enforced.

By J. Brent Walker  |  July 14, 2009; 3:18 PM ET
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