Talking Cultural Diversity

a discussion board for cultural and diversity issues by Thomas Kochman and Jean Mavrelis

Ethnicity and the Supreme Court

By Thomas Kochman - 06.16.2009

In a post late last week, I explored the question of how Sonia Sotomayor’s ethnicity might influence her judgments or the judgments of other members of the Supreme Court if she is confirmed. It got me thinking more about Thurgood Marshall and his time on the nation’s highest court, and the role his ethnicity played in his judgements.

In addition to the social perspective Marshall brought to the Court, what was also telling, but less obvious, was the cultural perspective he brought as an African American to deliberations. The case where this played out most clearly was  Rankin vs. McPherson.  I have some familiarity with this case because I was called upon to testify as an expert witness on behalf of McPherson in one of the earlier trials.

To bring that case into the present discussion I offer a brief summary of the essential details as given by Marshall in writing for the Court:
On March 30, 1981, McPherson and some fellow employees heard on an office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a co-worker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation, which according to McPherson\’s uncontroverted testimony went as follows:

\”Q: What did you say?
\”A: I said I felt that that would happen sooner or later.
\”Q: Okay. And what did Lawrence say?
\”A: Lawrence said, yeah, agreeing with me.
\”Q: Okay. Now, when you — after Lawrence spoke, then what was your next comment?
\”A: Well, we were talking — it\’s a wonder why they did that. I felt like it would be a black person that did that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time, I was thinking that\’s what it was. . . But then after I said that, and then Lawrence said, yeah, he\’s cutting back medicaid and food stamps.  And I said, yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him.\”

McPherson\’s last remark was overheard by another Deputy Constable, who, unbeknownst to McPherson, was in the room at the time.  The remark was reported to Constable Rankin, who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, \”Yes, but I didn\’t mean anything by it.\”  After their discussion, Rankin fired McPherson.

Rankin testified that, when he asked McPherson whether she meant the remark, she replied, \”I sure do.\” In neither of its opinions in this case did the District Court make an explicit finding regarding which version of this conflicting testimony it found credible.  We note that the question whether McPherson \”meant\” the statement is ambiguous. Assuming that McPherson told Rankin she \”meant it,\” McPherson might think she had said that she \”meant\” that she disliked the President and would not mind if he were dead, while Rankin might believe that McPherson \”meant\” to indicate approval of, or in any event hope for, political assassination.

What’s interesting here is that members of the court themselves could not unequivocally decide among themselves what was meant by McPherson saying “she meant it” when asked that question by Constable Rankin. It was, as they noted, “ambiguous.”  What is culturally relevant is that the ambiguity shown in the above transcript generally corresponds to differences in African American and U.S. mainstream discourse style as I discussed in my chapter “Fighting Words” in Black and White Styles in Conflict.

Briefly put: U.S. mainstream discourse style interprets ominous statements like McPherson saying she meant what she said to be on an action continuum, as suggesting that McPherson would or might act in some way, either directly or indirectly, in support of her feelings toward the President.  This was the position that Constable Rankin took citing the role that the Sheriff’s office had in protecting the President were he to come to Houston and McPherson, by working in the office, having access to schedules and other information relevant to the President’s whereabouts. The African American cultural position –which McPherson also corroborated in conversations I had with her at the time –saw those statements as expressions of how she felt but without any action-oriented implication.

This cultural difference makes me wonder whether Marshall’s representation on the court created the ambiguity that otherwise would not have surfaced had the court consisted only of individuals whose life experience was rooted entirely in the U.S. mainstream.  And insofar as the African American cultural understanding comes closer to explaining what McPherson actually meant when she said she “meant” it, Marshall’s likely role in bringing that understanding to the surface was not only value added but invaluable.

And returning to Sotomayor, following Susan Low Bloch it might only be in the deliberations of cases, rather than in the final rulings, that her cultural and social perspective as a woman and Latina, will emerge. Insofar as that adds a critical understanding that otherwise would not surface her role and presence will prove invaluable, too.

2 Responses so far

I find your comments regarding how Sonia Sotomayor’s ethnicity might influence her judgments or the judgments of other members of the Supreme Court, and how ethnicity may have played a role in Thurgood Marshall’s judgments during his time on the nation’s highest court quite interesting.
The brief history of the Rankin vs. McPherson helps bring clarity to your point. Without that information, I might not have come to understand your point of view.
I, on the other hand, felt ethnicity and gender would have no greater impact on their decisions and judgment than it has had on White males for decades. So, the opinion is that ethnicity and gender affects our views and opinions. Can White males accept the fact that is a true statement and more importantly, a reality of life? After all, the question seems to be more about life styles, and background than experience and qualifications. America has relied on past justices (at one time all white males) to interpret law and make rulings across ethnicity and gender “without bias.” Were they ever challenged because they happened to be White and Male? Have their decisions of the past been shaped around their qualifications, and experiences or their ethnicity and gender?
Are race, ethnicity, and gender only significant in the decision and judgments of minorities and women? I feel ethnicity and gender are irrelevant when it comes to qualifications. At the end of the day, isn’t that what we all really want. Is White males the only Americans capable of “putting” their ethnicity and gender aside to make ethical and legal decisions based on law?
It is July 1, 2010 and we awaiting the confirmation of another White female to the Supreme Court. A decision will be made to confirm Elena Kagan within a few hours or days. As a country, we have spent so much time and so many dollars trying to create a fair process for all Americans to achieve their individual dreams. Dr. King gave his life, “for a hope that someday all could be judged by the content of our character and not the color of our skin… and I might add gender.
Perhaps, this is still just a dream from the past. Will the next female justice or ethnic minority be judged on ability to interpret law and exercise good judgment? Will they be viewed as someone who cannot be “all they can be”, someone who has to park ethnicity and gender at the door in order to be considered worthy of the role? If that is the case, diversity is of no value and respect for individuality is useless. Only time will tell….

The “bias” of white men is also shaped by their social experience and cultural orientation. A case in point is Justice Robert’s process-oriented statement on the Seattle deseg case (see my blog “Color Blind, Color Conscious”) which equates the use of race to remedy racial inequality (such as affirmative action) or desegregation of schools, on a par with the use of race to promote inequality (racism). In my view that can only come from someone who has never felt the impact of discrimination himself and the subtle ways that it gets manifested that those who have felt the effects know only too well. One could also argue that that white male social privilege is reflected by the kinds of legislation they pursue (get the government off my back) or more tellingly don’t pursue until it directly impacts them (health care, ADA).

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