Judge Sotomayor, The Supreme Court, and Family Ties

This is a bit far afield for me, as I usually stick narrowly to issues of parentage.   But it isn’t every day a new Supreme Court nomination comes along.  This morning, President Obama nominated Sonia Sotomayor to serve on the United States Supreme Court.

Now although the United States Supreme Court is enormously important for many, many reasons, it does not do very much family law.   Instead,  family law has, for the most part, been left to the states.   In some instances, this is the result of deliberate litigation strategy–as in raising only state constitutional claims in on-going access to marriage cases.   (And yes, Proposition 8 was also decided today.   Some thoughts about that on another blog shortly.)  But it also reflects a long-held view that family law is and should be subject to local variation.  

Of course from time to time, the Supreme Court does get to family law issues and even to the one’s that concern me here–parentage questions.   Several of the recent opinions have been badly fractured, leaving notable murkiness in the area.

For example, in 2000, the Court decided Troxel v. Granville, a case considering the rights of grandparents.   There are a total of six opinions (from nine justices), and while the disposition of the case before the Court is quite clear, the broader ramifications of all those opinions remains to be seen nine years later.    Looking back further, in 1989 the Court decided Michael H. v. Gerald D,  a case between two men, each wanting to claim fatherhood.  One invoked the marital presumption, the other genetics.  In this case the Court managed a total of five opinions, and while it clearly disposed of the case before it, the general contours of the law remains murky.

It’s tempting to wonder if the Court’s inability to fashion a nice clear majority in family law reinforces its already existing inclination to avoid family law cases.   Perhaps so.   But it’s also interesting to think about what it is about family law that creates this fracturing of opinion, and whether that leads to any thoughts about Judge Sotomayor’s nomination.

It seems to me that, for better or worse, many decisions in family law are deeply influenced by individual experiences of family.   Recognizing that “one-size-fits-all” may not work in family law, legislatures often allow judges discretion to tailor family law solution to fit particular circumstances.   Hence, you see loose standards like “the best interests of the child.”

But what’s best for a child?  How does a judge know?   Very likely the answer is shaped in part by the judge’s own life experiences, as a child and perhaps as a parent.   (This is quite clear in Troxel, for example, where the trial judge explicitly referred to his own childhood.)

This plays out on the Supreme Court as well.   In Michael H, for example, it’s clear that Justice Scalia cannot grasp the flexible and shifting environments in which Victoria (the child) is raised.  Neither can he admit the possiblity that she could have valuable relationships with both Michael and Gerald.   My guess is that it is quite outside his own experience.

In this light, here are two small things thing I noticed listening to the press conference announcing Judge Sotomayer’s nomination this AM.    First,  she acknowledged her extended family, one by one,  including her nieces and nephews.   This might bespeak an appreciation of extended as well as nuclear family ties.

Second, after she spoke of her mother, she continued  “[s]itting next to her is Omar Lopez, my mom’s husband and a man whom I have grown to adore.”    She did not refer to Mr. Lopez as her father (who died when she was nine) but did recognize his importance.   It gives me hope that were Judge Sotomayer called on to do so, she would be able to imagine and respect family forms that do not conform to the standard mom/dad/two kids form.

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