PANDEMIC LIFE CANNOT be a welcome change for Sonia Sotomayor. The justice is a people person, so much so that her clerks have been known to gently encourage her to leave events, at which she can be the last one in the room chatting up the service staff. In normal times, Sotomayor lunches with those clerks in her chambers and personally fulfills their snack orders at Trader Joe’s (Sotomayor prefers the dried mango). She likes crowds enough to voluntarily go to Times Square on New Year’s Eve to preside over the ball drop. Until the inauguration last month, where she swore in Kamala Harris, the biggest crowd Sotomayor had been spotted in was the one at Ruth Bader Ginsburg’s funeral, where she was the only justice in a face shield. Sotomayor is 66 and has type 1 diabetes, putting her at high risk.
COVID times have also robbed Sotomayor of her usual discursive style at oral argument. In the Court’s most recent full pre-pandemic term, she asked the first question of advocates one-third of the time, more than anyone else. Last spring, when the justices were compelled to switch to livestreamed phone calls, rigidly moderated by Chief Justice John Roberts, an analysis by law professor Leah Litman found Sotomayor was the likeliest to have her questioning cut short.
And yet a dozen years into her tenure, Sotomayor’s voice is resounding far beyond the audience of Court watchers. She has won over those skeptical of her nomination, among them law professor and journalist Jeffrey Rosen, whose 2009 New Republic story infamously quoted anonymous doubters calling her “not that smart and kind of a bully on the bench.” Rosen told me, “In 2019, I had the opportunity to apologize to Justice Sotomayor for that piece, which was rightly criticized. Justice Sotomayor has proved to be a powerful voice of liberalism on the Court, and her role has become all the more central since Justice Ginsburg’s passing.”
Sotomayor is also poised to take over Ginsburg’s role as the functional minority leader. There are calls for 82-year-old Stephen Breyer to retire while a Democratic president and Senate can replace him, and Joe Biden has promised to nominate the first Black woman to the Court. On a Court that runs on seniority, Breyer’s move would anoint Sotomayor as the most senior justice in what is usually, in the most heated cases, the resistance—the true heir to Ginsburg and, before her, John Paul Stevens and Thurgood Marshall.
This would make Sotomayor the commander of the losers, at least in the short term. Just in time for Democrats to gain a fragile governing trifecta, the far right has captured the Court with a sixjustice majority, ready to thwart whatever Biden may attempt. The undignified assaults of the Trump era are now mostly behind the Court, leaving the conservative justices free to resume their longstanding wish lists—taking a buzz saw to reproductive, LGBTQ, workers’, and civil rights and to remedies to racial injustice or curbs on criminalization. At this point, with Donald Trump having named three youthful justices to lifetime tenure and liberal calls for packing the Court a distant dream, it would take an untimely death or unforeseen retirement to change the basic, Sisyphean math.
There are many ways to approach the oppositional role. Ginsburg seemed to see her job as keeping the liberals together on the big cases, and when they formed a united front, it gave her the power to assign dissents. Sotomayor often dissented alone.
Toward the end of Ginsburg’s life, a curious dynamic emerged: She and Sotomayor often formed a dissenting duo on what passes for the left of the Court. Fellow Democratic appointees Breyer and Elena Kagan would often either write a less incendiary dissenting opinion (as they did in the case that upheld Trump’s Muslim ban) or join the majority (as they did in the opinion that allowed states to opt out of Obamacare’s Medicaid expansion), perhaps to dilute its poison, a habit that in some contexts has been labeled “appeasement” by liberal law professors.
But that was a strategy crafted when Anthony Kennedy, and even, sometimes, Roberts, might have been open to joining the liberals in a compromise. It’s a much longer shot on the 6-3 Court Ginsburg has left behind. In a handful of opinions issued since her death, on abortion, the death penalty, and COVID-19 restrictions, there have been glimmers that Kagan, who is rarely described without the words strategic and brilliant appended to her name, is moving toward Sotomayor’s corner by joining her most furious opinions. Breyer, meanwhile, has repeatedly declined to sign on to Sotomayor’s recent dissents, even when he is on the record disagreeing with the majority, seeming to hold on to the spirit of his recent declaration that “a dissent is a failure.”
“Once the chief is not the fifth, that whole project falls apart,” says Slate’s Dahlia Lithwick. “It’s early days, but it’s possible that Kagan is making a decision recently: I’m not going to let Sotomayor be out there alone where Ginsburg used to be,” she adds. “Ginsburg and Sotomayor in all of these years have been written off as crackpottery of the wild left, whereas it is in fact what the Burger Court and the Rehnquist Court would have seen as mainstream.”
Now it’s Roberts, a lifelong acolyte of the conservative legal movement, who is not only branded a leftist crackpot by the right but is irrelevant when conservatives no longer need him to get to five. Only surprise apostasy from at least one of the new justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—can stop the right now.
January 20 was solemn, barely an exhale, but being there had to feel like a return to form. Sotomayor wore jaunty cobalt-blue slacks, harmonizing with the rest of the jewel tones onstage. The first Black and South Asian American vice-president had chosen the first and only woman of color on the Court to swear her in. The now-defunct Blessed Sacrament School in the Bronx was well represented, having educated both Sotomayor and her inauguration co-star Jennifer Lopez. (Some of Sotomayor’s clerks have affectionately nicknamed her “Sonia From the Block.”) When the justice graduated from Blessed Sacrament, Sister Mary Regina wrote in her yearbook, “This girl’s ambitions, odd as they may seem, are to become an attorney and someday marry.”
Sotomayor went first, lightly flubbing the intonation of Harris’s name. Roberts, as is tradition for a chief justice, swore in the president. Everybody could silently agree on something: Without knowing what will happen next, it is a new era for the Court.
A FEW YEARS AGO, Sotomayor’s onstage event at Berkeley Law had to be paused because of a sound issue. Her former clerk, law professor Melissa Murray, immediately identified the cause: Sotomayor’s teardrop-shaped hoops were audibly rubbing against the microphone. The justice was good-natured about it. “I’ve been taught to wear—or not taught, I have not learned—to wear close-cropped earrings,” she said. “I like big earrings.” The students cheered.
“I’m me,” Sotomayor conceded. “I’m willing to change but not in everything.”
Murray reminded her that during Sotomayor’s nomination hearings, she painted her nails inoffensively neutral colors until her swearing in.
“I walked up to the president when he was celebrating my confirmation, and I said, ‘Do you notice anything different?’” Barack Obama did not. Sotomayor held both hands up to her face and grinned. “ ‘They’re red.’”
Later on, Sotomayor did something I’ve never seen any other justice do, wading into the audience to command the microphone and take questions, punctuating answers with hugs and offering to take photos before the students even had to ask. “You were like Oprah,” said Murray, amused.
This kind of ease in public didn’t always come naturally to Sotomayor. In her memoir, My Beloved World, far more intimate and lyrical than your usual Court wonkery and written with an Iranian American poet named Zara Houshmand, Sotomayor describes her childhood in the Bronxdale Houses as “a state of constant tension punctuated by explosive discord, all of it caused by my father’s alcoholism and my mother’s response to it, whether family fight or emotional flight.” At 7 years old, Sonia fainted in church. She was rushed to the doctor’s office, where she was so terrified of the needle during the blood draw that she bolted, hiding under a parked car in a ball, as small as she could make herself. She was eventually diagnosed with diabetes. “But the disease also inspired in me a kind of precocious self-reliance that is not uncommon in children who feel the adults around them to be unreliable,” she wrote. Eventually, she learned to wield the needle herself.
Sotomayor’s nickname in her family was Ají (“hot pepper”). “Perhaps my eventual enjoyment of being a litigator owes something to the license it gave me to disagree more openly with people,” she wrote. These are, of course, traits expected of the Manhattan prosecutor and law-firm partner Sotomayor was before she was a judge, though you will be shocked to learn they redounded differently for a young Latina from the Bronx, sterling Princeton and Yale Law credentials notwithstanding. When David Souter retired in 2009 and word spread that Obama was considering Second Circuit judge Sotomayor, certain legal elites scrambled to dissuade him.
In public, there was Rosen’s piece. In private, there was the letter from Harvard professor Laurence Tribe that was later leaked to and published by Ed Whelan, the conservative lawyer who more recently became notorious for using Zillow to craft an improbable sexual-assault defense of Kavanaugh. Tribe was pushing for the appointment of Kagan, his sometime Harvard dean, and claimed Sotomayor was “not nearly as smart as she seems to think she is.” Tribe recanted soon after. “Literally everything Justice Sotomayor has said, written, and done as a Member of the Supreme Court since her confirmation in 2009 has confirmed my confession of error and President Obama’s wisdom in overcoming the doubts I’d expressed,” he told me in an email. “Her judicial opinions, including particularly her impassioned and logically rigorous and legally incisive dissents, have greatly enriched the jurisprudence from which a more enlightened and humane Court will be able to draw when the pendulum of judicial appointments swings back from the extreme rightward tilt of the current era.”
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