Social Mobility: A Constitutional Matter

Sonia Sotomayor spent her childhood in the South Bronx area of New York City. Her Puerto Rican parents had lowly occupations. After graduating from Cardinal Spellman High School, Sonia Sotomayor attended Princeton University, where she graduated summa cum laude. She then earned her J.D. at Yale Law School, where she was an editor of the Yale Law Journal. After passing the bar in 1980, she served as a trial lawyer under District Attorney Robert Morgenthau. She became a US District Court Judge for the Southern District of New York City and was appointed by President Bill Clinton to the U.S. Second Circuit Court of Appeals. More recently, in 2009, President Barack Obama nominated her for Supreme Court Justice; this nomination was confirmed by the Senate. Sonia Sotomayor is a shining example of upward social mobility: from the Bronxdale Houses housing project to the U.S. Supreme Court no less! Sotomayor is a woman whose humble origins did not prevent her from reaching the pinnacle dreamed of by many American law graduates. The President’s remarks when nominating Judge Sonia Sotomayor are proof of the high value attached to her appointment as an example of social mobility. There are many qualities that Obama admires in a judge, such as intellectual rigor and recognition of the limits of the judicial role. These two qualities are, indeed, essential, but they are not sufficient. After recalling Oliver W. Holmes, Mr Obama remarked that experience «can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court». Hence his decision to nominate “an inspiring woman” whose her career has given her «not only a sweeping overview of the American judicial system, but a practical understanding of how the law works in the everyday lives of the American people. Along the way she’s faced down barriers, overcome the odds, lived out the American Dream that brought her parents here so long ago. And even as she has accomplished so much in her life, she has never forgotten where she began, never lost touch with the community that supported her».  He went on to say that Judge Sonia Sotomayor would bring to her role «the wisdom accumulated from an inspiring life’s journey. And when [she] ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law». Data on social mobility (hereinafter SM) in Western countries are conflicting. In the United States, in particular, the “social elevator” does not work as it once did. On February 1st, 2016, the Stanford Center on Poverty and Inequality presented its third annual “state of the union” report devoted to these issues: «it is often claimed that there is much tolerance in the U.S. for high levels of inequality, as long as that inequality arises from a fair contest in which all children, no matter how poor or rich their parents, have the same opportunities to get ahead. This formula, insofar as it properly describes U.S. sensibilities, puts a premium on assessing whether indeed opportunities to get ahead in the U.S. depend much on one’s starting point». Widespread inequality, in itself a problem, becomes intolerable in situations in which there is very little SM and, therefore, an individual’s fate is already sealed at the outset. Indeed, individuals are not the same at birth, and in the absence of SM they cannot foster the same hopes for a better future. In the mid nineties, Ralf Dahrendorf wrote as follows: «some regard all inequalities as incompatible with a decent civil society; this is not my view. Inequality can be a source of hope and progress in an environment which is sufficiently open to enable people to make good and improve their life chances by their own efforts. The new inequality, however, is of a different kind; it would be better described as inequalization, the opposite of levelling, building paths to the top for some and digging holes for others, creating cleavages, splitting». The aim of this paper is to demonstrate that SM is a constitutional matter, and not a process relating only to social, economic, cultural and political relationships. SM is also a normative issue, all the more so when society is not, in itself, capable of promoting its development... (continues)