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Thursday, December 3, 2020

Amy Coney Barrett Is Not Alone In Her Bias

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Almost as soon as President Trump announced his nomination of Judge Amy Coney Barrett to the U.S. Supreme Court, op-eds and statements by law professors and others flooded the media. These posts either sang her praises or vehemently opposed her as Ruth Bader Ginsburg’s replacement on the Supreme Court. The positive pieces extolled her brilliance, integrity, and fine personal qualities. Virtually all of the negative commentary focused on her right-wing views, which they assert will strengthen the Court’s conservative majority and possibly lead to the end of health care, abortion, and same-sex marriage.

As a law professor who approaches any legal system by trying to understand the cultural factors explaining a law’s creation and interpretation, I agree that Amy Coney Barrett has a bias that definitely impacts her legal reasoning. But in this respect, she is no different from anyone else.

The reality is that legal judgments are shaped by the interpreter’s background, experience, and beliefs. Such influences have been documented as early as the first century of the Common Era, when the two major schools of thought concerning Jewish law emerged with the sages Hillel and Shammai. Hillel’s judgments often reflected his “every-man” perspective, whereas Shammai’s rulings reflected the rich man’s perception of the world.

In the legal academy in the United States, the law was traditionally understood to be an objective, neutral system incapable of being influenced by anything outside of its internal process. That view has changed significantly among many legal academics, who now focus on discussing and interpreting law in cultural terms. The name for this way of looking at the law is cultural analysis.

Originally, cultural analysis was associated with areas of legal scholarship, such as feminist jurisprudence and other critical legal studies. By the last third of the twentieth century, however, even more traditional areas, such as law and economics and intellectual property, began to pay attention to the law’s cultural implications.

A cultural analysis of law emphasizes how the law sustains and reinforces relationships of power in lawmaking and the importance of historical context. As the late Supreme Court Justice John Paul Stevens observed, “traditions—especially traditions in the law—are as likely to codify the preferences of those in power as they are to reflect necessity or proven wisdom.” Cultural analysis of law recognizes that all involved in the lawmaking enterprise have bias and that bias impacts not only legislative priorities but also judicial interpretations. Given that law is produced by humans, pure neutrality simply is impossible.

Given that law is produced by humans, pure neutrality simply is impossible.

I realize that some legal authorities, particularly those with a more originalist and textualist bent, will disagree and argue that a provision in the Constitution should mean the same thing today as it did in 1787. But those who look at law through a cultural analysis lens believe that legal texts possess the capacity to speak to new generations in different contexts. Culturalists seek to broaden the discourse by also inquiring into the current meaning of legal texts. This contextualized, democratic approach to law seeks to incorporate multiple perspectives into the discourse rather than be confined to those of dominant social groups—such as the all-male American Founders.

One of the ways cultural analysis scholars incorporate more diverse perspectives into the discourse is through the use of narrative or storytelling. This approach was pioneered by the late Yale law professor Robert Cover in his groundbreaking Harvard Law Review article, “Nomos and Narrative.” In that article, Cover argued that “once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”

Cover’s insight demonstrates that the key theme of cultural analysis is its emphasis on the interrelationship between law and culture. Perhaps this intersection was particularly clear to Cover, who not only had a background in Jewish law but also made it acceptable to use Jewish legal sources in conventional academic discourse. Because Jewish law maintains the view that its origin is Divine, it is often regarded as a prime example of a legal system that is objectively neutral. But the reality is quite the opposite. As stated by Menachem Elon, the former Deputy President of the Supreme Court of Israel, “the source of [Jewish law] is Heaven,” but its place “and its life and development… are not in heaven but in human society.”

So yes, Amy Coney Barrett will surely be guided by her perspectives and even her beliefs as she interprets the law. But in this way, she will be no different from all of her current and former colleagues on the Court and lawmakers everywhere.


Roberta Rosenthal Kwall is the Raymond P. Niro Professor at DePaul University College of Law. She is the author of “Remix Judaism: Preserving Tradition in a Diverse World” (Rowman & Littlefield, 2020) and “The Myth of the Cultural Jew: Culture and Law in Jewish Tradition” (Oxford U. Press 2015).

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