Interpretation, Hermeneutics, and Judge Sotomayor

By Ernesto Tinajero 7-16-2009

Judge Sonia Sotomayor has begun jumping through the Senate's ritual hoops to become the next member of the Supreme Court. When she makes it through the carnival of media and posturing, she will hold the highest office ever attained by a Latino in this country. For this reason alone, most of us in the Latino community will be watching with great interest. Another reason might be to see what the process reveals about us, as a people and our faith.

The two charges most directed at Judge Sotomayor have been rolled into attacks about her decision in the New Haven Firefighter case. The first one, launched by such icons of Civil Rights as Rush Limbaugh and Newt Gingrich, is that Judge Sotomayor is a racist. The second one is that she will be an activist judge, going beyond what the constitution says, and try to make policy from the bench. Her critics attempt to roll both attacks into one to demonstrate their fears. While the first charge is so comical as to be a bad joke, the second offers an interesting understanding of modern hermeneutics. How people understand written text, especially ones composed in another time and culture, will be the unspoken context.

The process of interpreting written text is tricky, hence the need for the Supreme Court. In his latest book, Packing the Court, James MacGregor Burns points out that judicial activism is on the eye of the beholder. From the Dred Scott case to the Warren Court, the Supreme Court can be seen as "activistic." He further argues that the history of the Court, with the exception of the Warren Court, is one of conservative activism. It has been a drag on the pull of history.

The current debate about judicial activism turns on a judicial philosophy called "strict constructionism." This set of judicial ideas states that the text should be taken as literal and at face value without trying to understand the intention nor the context in which the constitution was written. The thought is that such interpretation will support the conservative worldview. At its core, the debate centers on interpretation -- a battle modern Bible scholars have been waging for over 200 years. Many of those who buy into strict constructionism come from the same environs that interpret the Bible through a strict literalism.

It should be an interesting week.

Ernesto Tinajero is a freelance writer in Spokane, Washington, who earned his master's degree in theology from Fuller Seminary. Visit his blog at

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