A LOOK BACK AT THE SOTOMAYOR HEARINGS

20 July 2009

The hearings, among other drawbacks, failed to observe the distinction between easy cases, in which what the Constitution prescribes is unambiguous and unmistakable, and the harder cases in which judges have to choose among interpretations of the Constitution in some particular connection. The easy cases – for example, whether any state can be deprived of equal representation in the Senate – rarely come before the Supreme Court, and would invite unanimous decisions if they did. The Court typically divides on the harder cases. It does so conscientiously; at least all the justices will claim that they are deciding the cases with fidelity to the law, to use Sotomayor’s motto. What does that mean, however? Circumstances have changed radically since the Constitution was drawn up: Does the Second Amendment apply to personal ownership of assault rifles? Machine guns? Anti-tank guns? Does the First Amendment protect personal liberty as well in a society in which almost all people are, not an independent farmers, but employees dependent on the good will of their employers? Do employees need more legal protection for economic security than independent farmers? The Sotomayor hearings hardly made a beginning at sorting out such issues and considering how judges or justices should approach such issues. It is typical, however, in this and other connections that our political system falls down in sorting out issues.