Black woman justice is important in a highly divided country – news

By Antara Haldar

In an address in October 2013 at the University of Cambridge’s Faculty of Law Theater, I showed the students a “class photo” of the Supreme Court of the United Kingdom and challenged them to “see the difference”. There was no case for Sherlock Holmes: of the 11 judges, all were white, and only one was a woman – the only, if indomitable, Baroness Hale.

A decade later, my colleagues across the Atlantic, thankfully, did not have to play this game with their students. Three sitting Supreme Court Justices are women, two are non-white, and now the United States is at the helm of another historic court hearing. On March 21, the U.S. Court of Appeals Justice Ketanji Brown Jackson, President Joe Biden’s nomination to replace retired Supreme Court Justice Stephen Breyer, began its confirmation process in the U.S. Senate. If their rendezvous is successful, Biden will not only fulfill a great campaign promise by putting the first African-American woman on trial; he will also have recognized a core truth about how legal institutions should work.

Far from being a tokenist angle for left-wing identity politics (as right-wing critics inevitably claim), Jackson’s appointment would reinforce an essential but under-theorized feature of well-functioning legal systems: affective appeal. The make-up of the highest court of a country should believe the make-up of the country.

A critical mass of public buy-in is an indispensable ingredient in an effective legal system. But as far as the psychological dimensions of the law at all were concerned, the focus was on what social scientists call the “cognitive” side – the law appeals to the participants’ reasoning – rather than the law as a ” affective institution “which is able to attract the emotions of the participants. According to psychologist Daniel Kahneman’s well-known scheme, legal rules and institutions must appeal to both system two (“slow” analytical and theoretical thinking) and system one (“fast” instinctive and intuitive thinking).

The wiring of our brains is an inheritance from humankind originating in small tribes and family networks, where trust was largely limited to the in-group. As a result, we tend to have much more direct affective (emotional) connections with people who look ‘like us’. Under the right conditions, however, personal trust in a group member can shift to impersonal trust in a larger institution.

As the 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 discussion about inclusive institutions and institutional diversity is not just fashionable sloganing. 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 actors. The reason why the Supreme Court and other key institutions should look at how the country they serve is not just a matter of policy. It is important for their own proper functioning.

In a highly divided country like the USA, the legal legacy of slavery and racism is not an old scar. It is an open wound, visible in practices such as red tape and voter dismissal, and in tragedies such as the police murder of George Floyd. Under these difficult circumstances, the appointment of an African-American woman to the Supreme Court could help provide the institution with legitimacy in the eyes of a key, long-alienated constituency.

Jackson brings just the right mix of objectivity and empathy to work. It is to her credit that she was simultaneously considered elitist, through her Harvard education, but also suspicious, due to the arrest of a distant uncle for a non-violent drug offense. She also has a long 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 to the dismissed. As such, they have no right to assume their own moral authority. Rather, they have to earn it, which requires constant invention.

Jackson stresses that she does not look at all legal issues through the lens of the race. Nevertheless, her nomination raises an important question of institutional design. By hiring a representative of the country’s most legally neglected community into one of its most respected institutions, the United States can set an example internationally.

As in television, cinema and comedy, faithful representation makes for a better story. The mosaic of perspectives introduced in a university department, a marketing department or a police department by more diverse staff is not just an affirmation cliché; it provides the basis for better performance. Similarly, Jackson’s appointment to a seat on the U.S. Supreme Court is not just good politics; it provides the basis for better case law. – Syndicate Project

Antara Haldar is a Professor of Empirical Law at the University of Cambridge.

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