By Mathew Goldstein
Senator Jeff Session, speaking to a Faith and Freedom Coalition event last year about the importance of the Supreme Court, claimed that Supreme Court Justice Sonia Sotomayor had what he called “a postmodern, relativistic, secular mindset” that is “directly contrary to the founding of our republic.” He complained that Sotomayor had endorsed legal scholar Martha Minow’s observation that in the law “there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging”. He has also identified Supreme Court Justice Elena Kagan as another judge with this mindset.
Mr. Sessions then said this: “So I really think this whole court system is really important and the real value and battle that we’re engaged in here is one to reaffirm that there is objective truth, it’s not all relative. And that means some things are right and some things are wrong, and we’re getting too far away from that in my opinion and it’s not healthy for any country and it’s really not healthy for a democracy like ours that’s built on the rule of law.” If he were talking about his boss, president elect Donald Trump, instead of the whole court system then there would be lots of false statements he could quote that support his complaint.
Mr. Sessions unambiguously links a "there is no right and wrong" attitude to secularism, saying at his recent Senate hearings for Attorney General that he "is not sure" if secular attorneys are as capable of discerning the truth as religious attorneys. Sonia Sotomayor self-identifies as a Catholic but it appears that she, like the majority of Americans, does not go to church every Sunday. For Mr. Sessions, a failure to visibly worship every weekend appears to suffice to characterize that person as secular. Ms. Sotomayor, you are welcome to join WASH, we will not reject your membership if you continue to call yourself Catholic.
Mr. Session's battle in the court system between those who think "that there is objective truth" versus those who think "it's all relative" is imaginary. Mr. Session is engaging in the hyperbole that characterizes partisan stereotyping. Nothing in Sonia Sotomayor's or Elena Kagan's professional history supports the notion that they believe there is no right and wrong. Saying that there are multiple perspectives, that there is no neutrality, that choice is inherent to judging, that there is no single objective stance, is not a denial that the outcome will be qualitatively better or worse as a consequence of which decision is made. It is more likely an acknowledgement that the future consequences of today's decisions can sometimes be difficult to predict reliably, that decisions can require trade-offs between similarly weighted positive and negative elements contained in the alternative outcomes, that different types of positive and negative elements within the outcomes can be difficult to evaluate against each other. Because of the complexities there may not be a single best choice. For many judges the real world decisions that they are expected to make may often have complexity.
I cannot speak for Martha Minow and Sonia Sotomayor. I am inclined to think that there sometimes is a single, most objective stance, and sometimes there is no single, most objective stance. The details of the context matters. It is easy to talk in generalities and abstractions. Reasonable people recognize that generalities are rarely all inclusive and complete characterizations of every possible context, but are instead statements of tendencies that are intended to identify what is deemed to be usually true but not necessarily always true.
If I thought our judges have a postmodern, relativistic, mindset of the untenable sort that Jeff Session complains about then I would find that to be objectionable. But Jeff Session fails to demonstrate that there is such a problem and I see no evidence for it. When we look at Jeff Sessions record as a prosecutor we see a rigid, mechanical, check a couple of boxes and render the verdict, inflexibility that appears to pay little, if any, attention to the possibility that a perpetrator of a crime can also be a victim of circumstances. The result appears to me to be overly simplistic and excessively harsh. The extent to which justice requires accounting for extenuating circumstances when implementing a punishment is a controversial topic. However uncomfortable this may make some people, there is some room for disagreement on the best answer to such questions and the best answer is unlikely to be found in the pages of the bible.