Antara Haldar is University Lecturer in Empirical Legal Studies at the University of Cambridge.
In an October, 2013, address at the University of Cambridge Faculty of Law lecture theatre, I showed students a “class photo” of the United Kingdom’s Supreme Court and challenged them to “spot the difference.” It wasn’t a case for Sherlock Holmes: of the 11 justices, all were white, and only one was a woman – the solitary, if indomitable, Baroness Brenda Hale.
A decade later, my colleagues across the Atlantic, thankfully, do not have to play this game with their students. Three sitting United States Supreme Court justices are women, two are non-white, and the country is now on the cusp of another historic judicial appointment. On Tuesday, U.S. Court of Appeals Justice Ketanji Brown Jackson, President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer, began her confirmation process in the U.S. Senate. If her appointment is successful, Mr. Biden will not only have fulfilled a major campaign promise by putting the first African-American woman on the Court; he also will have acknowledged a core truth about how legal institutions should work.
Far from being a tokenistic nod to left-wing identity politics (as right-wing critics inevitably will contend), Judge Jackson’s appointment would reinforce an essential but undertheorized feature of well-functioning legal systems: affective appeal. The makeup of a country’s highest court should resemble the makeup of the country.
A critical mass of public buy-in is an indispensable ingredient in an effective legal system. Yet to the extent that the psychological dimensions of law have been considered at all, the focus has been on what social scientists call the “cognitive” side – law’s appeal to participants’ reason – rather than on law as an “affective institution” that is capable of appealing to participants’ emotions. Following psychologist Daniel Kahneman’s well-known schema, legal rules and institutions need to appeal to both of the brain’s thought processes: System Two (“slow,” analytical and theoretical thinking) as well as System One (“fast,” instinctive and intuitional thinking).
The wiring of our brains is a legacy of humanity’s origins in small tribes and kin networks, where trust was largely limited to one’s in-group. As a result, we tend to have far more immediate affective (emotional) connections to people who look “like us.” Under the right conditions, however, personal trust in an in-group member can spill over to impersonal trust in a larger institution.
As linguist George Lakoff of the University of California, Berkeley, and Mark Johnson of the University of Oregon point out, we are all symbolic thinkers. We live by metaphors. Contemporary talk of inclusive institutions and institutional diversity is not just fashionable sloganeering. Rather, it addresses a central need in any complex society. We need institutional structures that can reflect the experiences of a broad cross-section of stakeholders. The reason the Supreme Court and other key institutions should look like the country they serve is not just a matter of politics. It is important for their own proper functioning.
In a highly divided country like the U.S., the legal legacy of slavery and racism is not some old scar. It is an open wound, visible in practices like redlining and voter disenfranchisement, and in tragedies like the police murder of George Floyd. Under these fraught circumstances, the appointment of an African-American woman to the highest court can help to confer the institution with legitimacy in the eyes of a key, long-alienated constituency.
Judge Jackson brings just the right mix of objectivity and empathy to the job. It is to her credit that she has been deemed simultaneously elitist, by dint of her Harvard education, but also suspect, owing to a distant uncle’s incarceration for a nonviolent drug offence. She also has a long track record as a public defender – a first for the Supreme Court.
As critical legal scholars have noted for generations, legal institutions have a mixed record (at best) of delivering justice for the disenfranchised. As such, they have no right to assume their own moral authority. Rather, they need to earn it, which requires constant reinvention.
Judge Jackson is emphatic that she does not view all legal issues through the lens of race. Even so, her nomination raises an important issue of institutional design. By including a representative of the country’s most legally neglected community in one of its most highly respected institutions, the U.S. can set an example internationally.
As in television, cinema, and comedy, faithful representation makes for better storytelling. The mosaic of perspectives introduced into a university department, a marketing department, or a police department by more diverse hiring is not just an affirmative action cliché; it provides the basis for better performance. Similarly, Judge Jackson’s appointment to a seat on the U.S. Supreme Court is not just good politics; it provides the basis for better jurisprudence.
Copyright: Project Syndicate, 2022. www.project-syndicate.org
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