In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:
We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .O'Connor also stated that she hoped the Court would not extend the ruling to prohibit private lawyers from considering gender when selecting jurors. O'Connor said that a reasonable attorney would want women on the jury in cases such as sexual harassment. Clearly, O'Connor believes that women offer a qualitatively different (perhaps even better) perspective than men in certain settings.
[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:
Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .Ginsburg believes that gender remains relevant for the advancement of the "talent" and "capacities" of the Nation, and the Supreme Court continues to validate laws and policies which it concludes rest on "real" or "inherent" differences between men and women. Supreme Court precedent credits the very claims about sex that Sotomayor has previously made.
"Inherent differences" between men and women. . .remain cause for celebration. . . .Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . [and] to advance full development of the talent and capacities of our Nation's people. . . .
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.Furthermore, in Johnson v. Transportation Agency of Santa Clara County, Scalia argued that white men are "victims" in society but that women and people of color are powerful. He made this observation in a dissenting opinion, which disagreed with the majority's conclusion that an employer did not violate federal antidiscrimination law by taking gender into account when it decided to promote a woman over a male candidate: "[T]he only losers in the process are the Johnsons of the country . . . ."
Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.
Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."
As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .As Ginsburg notes in her dissent, Kennedy's "way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . ." Kennedy's ruling implies that the 5-male majority in Carhart (and the hundreds of men in Congress who enacted the law) can make better decisions than women who want to undergo this procedure after consulting their medical providers. Kennedy's gender-based perspective, however, has not eroded his prestige among conservatives.
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.
Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:
That cross burning subjects its targets, and, sometimes, an unintended audience. . .to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality.Thomas's experience living in fear of the KKK undoubtedly shaped his opinion in this case. Nevertheless, Thomas remains a respected jurist among conservatives.
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.
For links to all of my articles on Sotomayor, CLICK HERE.