Justices bound by the law

Carlos Alberto Montaner

Sonia Sotomayor will be a U.S. Supreme Court justice. That's good. She has magnificent academic credentials and experience; she is an intelligent person. The fact that she's Hispanic and a woman makes no difference to me. She seems to be a responsible and solid jurist. She is accused of having said that she brings to the exercise of justice her condition as a Latina, which, she presumes, would add to her decisions a special wisdom. That opinion may show a certain prejudice, but that's a hypocritical conclusion by her adversaries that in no way disqualifies her.

We all have a unique point of view, built by our personal circumstances. We opine and act from our prejudices, stereotypes, experiences, readings, influences and a neverending et cetera that includes something as immeasurable and opaque as genetic baggage and family upbringing. Each of the other eight members of the Supreme Court is also the unique product of a similar elaboration.

The task of these judges -- of all judges -- is to consciously struggle against the blind and irrational forces that are present within them, including against their own moral convictions and emotions, in order to analyze and make judgments according to what the law objectively determines.

Rational vs. nature

That's something very uncomfortable and unpleasant, probably against nature, because the rational component of the human beast has less weight than the influence of the old brain of a reptile that has been with us for millions of years, throughout the evolutional process.

Arthur Koestler, the great writer, enjoyed recalling the bloody anecdote of a brilliant physicist at Cambridge who caught his wife with a lover and killed them both with an axe. The cruel and ancient cerebellum triumphed over the rational frontal lobe.

Moreover, the institution of the Supreme Court is peculiar. One of its hardest tasks is to maintain judicial control of the Constitution. It is up to them, to these nine justices, in the last recourse, to decide whether legislators with their laws -- or judges with their sentences -- respect the letter, the spirit and, what is harder to know, the original intentions of the authors of that text, some gentlemen who lived a couple of hundred years ago in a world that was very different from ours.

In any case, it is important to understand that the main function of a Constitution, beyond regulating the coexistence of society in the public space, is to keep the representatives of the people from making sovereign decisions that are contrary to the fundamental text that rules the country. That's what saves us, for example, from seeing the majority decide that women should get no education, that homosexuals may be persecuted and that ethnic minorities can be deprived of their rights.

Brake on excesses

Once we understand that function, the task of the Supreme Court as it exercises its judicial control becomes clearer to us: It is a brake to the excesses to which democracy can lead us when the majority does not respect or does not acknowledge certain rights we have called ``natural,'' to which we have arbitrarily assigned a divine origin so that other men cannot wrest them from us.

Guillermo Lousteau, a professor at Florida International University, has written a wonderful book on the subject: Democracy and Control Over Constitutionality. This would be a timely read for anyone who wishes to understand the philosophical bases of constitutionalism and republican thinking (although its reach extends to parliamentary democracies.)

The foremost and ultimate intention of the founding fathers who overthrew the old regime was to preserve individual rights, not necessarily to impose the rule of the majority. ``We, the people,'' yes, but with limitations and many reservations.

That was the primary objective of the republican structure they erected in 1787, with its fragile mechanism of powers that balance and counterpoise each other. To that end, the constitutionalists who gathered in Philadelphia transferred the king's sovereignty to ``the people,'' but bound this unruly character tightly with a constitutional straitjacket conceived to impede the tyranny of the majority.

And then, as a final touch, they placed at the door to that structure nine well-trained guardians elected by no one and almost impossible to fire, as they stand ready to defend the institution: the Supreme Court of Justice.

Welcome to the group, Ms. Sotomayor.

August 4, 2009

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