Academic journal article Notre Dame Law Review

Sotomayor's Empathy Moves the Court a Step Closer to Equitable Adjudication

Academic journal article Notre Dame Law Review

Sotomayor's Empathy Moves the Court a Step Closer to Equitable Adjudication

Article excerpt


On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation's first Latina Supreme Court Justice. (1) While many Latinos embraced the idea of having "Sonia from the Bronx" (2) on the bench, others were fearful that her jurisprudence, combined with her background, would result in "reverse racism." (3) These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership--enlightening her colleagues to other perspectives--while utilizing empathy shaped by her experiences to facilitate her decisionmaking. This empathy has allowed her to give a voice to the habitually unheard, which inevitably generates fairer decisions.

Part I discusses two competing theories of judicial adjudication: the traditional model and the empathic model. This Part will call attention to the pitfalls of the formalist mode of decisionmaking, while contending that the use of empathy is the more realistic and humane paradigm of adjudication. This Part will also address and dispel some of the criticisms leveled at empathic decisionmaking. Part II maintains that in spite of the attacks directed toward empathy, it has played a vital role in significant Supreme Court decisions. Both Brown v. Board of Education (4) and Safford Unified School District No. 1 v. Redding (5) demonstrate how the use of empathy has allowed the Court to reach more just and equitable decisions. Part III examines Justice Sotomayor's empathic decision making. This Part first provides a brief history of her life, highlighting the challenges she has overcome. This Part then discusses how Sotomayor believes empathy participates in the decisionmaking process. Finally, in examining oral arguments and her separate opinion in Calhoun v. United States, (6) this Part reveals that, while Sotomayor's empathy gives a voice to those who are typically less heard, it does not amount to bias. In fact, her majority opinion in J.D.B. v. North Carolina (7) refutes accusations of unfair bias by demonstrating how the use of empathy facilitated Sotomayor's ability to be influenced by other perspectives. By taking into account the real-world consequences of her decisions, and acknowledging the litigants' differing perspectives, Sotomayor assists the Court in reaching more evenhanded decisions.


A. The Traditional View: Formalism

In the nineteenth century, the central legal theory was formalism. Under this paradigm, it was understood that "judges decided cases in mechanical, 'scientific' fashion." (8) Judges were likened to pharmacists, prescribing the appropriate rule to correct the legal issue presented. (9) The human element of judicial decisionmaking was altogether rejected; judges were merely the instrument through which relevant legal rules were applied to the particulars of a controversy.

Today, this view, which demands that judges abandon the lessons learned from life experiences, has softened slightly. Judge Cardozo was instrumental in the transformation of the prevailing legal theory by calling attention to the impracticability of such a model: "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (10) To put it simply, a judge cannot separate herself from the experiences that have shaped her, (11) nor should she have to.

Judge Cardozo's insights have become established in legal jurisprudence and have triggered various gradations of formalism. While there are those who still believe in "the myth of judge-as-oracle," (12) there are others who propose a quasi-formalist approach. In this method of adjudication, a judge is not a robot, but must "exercise good judgment in reaching decisions. …

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