Ruth Marcus, “Hobby Lobby,” and “Life Experience” Judicial Interpretation
Dr. Mark S. Latkovic
July 6, 2014
The Washington Post columnist Ruth Marcus’ “Judging from experience” opinion piece (http://www.washingtonpost.com/opinions/ruth-marcus-judging-from-experience/2014/07/01/78c51c30-0148-11e4-b8ff-89afd3fad6bd_story.html) on the Hobby Lobby and cellphone cases is in the “empathy” school of Constitutional interpretation – or, as she calls it, “life experience.”
She asks: “How did the Supreme Court manage to agree unanimously that police must obtain a warrant before searching cellphones yet split on whether employers must offer contraception as part of their health-care plans?” Marcus, a Harvard-trained lawyer, chalks it up, in part, to the gender difference: “All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.” (Of course, these men have wives and daughters and sisters too who presumably have uteruses, but never mind…)
In her concluding paragraphs, she continues, this time more eloquently: “The phenomenon of life experience influencing outcome is not unique to the cellphone and contraceptive cases; it is embedded in the act of judging. It was on display earlier this term in cases involving affirmative action and prayer. A Latina justice [Sotomayor] brings to the affirmative action debate an experience alien to that of a white male justice; Jewish justices [Ginsburg, Kagan, and Breyer] experience government-erected crosses and government-sponsored sectarian prayers in a more skin-prickling way than their Christian counterparts.” Well, of course they might. But this is not always the case, nor need it be. The Jewish judge may feel no such threatening sensation, so why assume it? In fact, he or she may welcome it as an expression of our country’s Christian religious heritage.
Marcus concludes: “To recognize this reality [of different reactions based on ethnicity, race, sex, and religion] is the first step toward what should be a judge’s goal. That is, to move past obvious points of identification and empathy and to imagine walking a few miles in the other side’s shoes. Or, in the contraceptive case, “the other side’s heels.” But this notion of “walking in another’s shoes” – something that goes beyond empathy for Marcus – cuts both ways. The white male justice, for example, brings “an experience alien” to the Latina justice. The questions then become: Whose experience do we privilege? And what’re our criteria for doing so? These are questions that orient us further and further away from Constitutional law and, I’m afraid, into such disciplines as sociology and social work. Feelings, not truth, become the jurisprudential norm.