Supreme Court’s liberal justice marks decade on bench
WASHINGTON – The Supreme Court had heard about 15 seconds of debate over adding a citizenship question to the 2020 census when Associate Justice Sonia Sotomayor interrupted the government lawyer at the lectern.
“I’m sorry,” Sotomayor said in her familiar fashion after Solicitor General Noel Francisco insisted that Commerce Secretary Wilbur Ross’ plan was in keeping with a nearly 200-year-old tradition. “It’s not been a part of the survey, which is where he reinstated it, since 1950.”
None of the justices, lawyers or reporters in the marble courtroom was surprised that Francisco had yet to complete two sentences. Nor were they shocked that Sotomayor broke in 58 times during the 80-minute debate, more than any justice in any case throughout the term.
After 10 years on the Supreme Court, Sotomayor, 65, is not only its most outspoken questioner – succeeding the late Justice Antonin Scalia, who inspired today’s “hot bench” – but its most frequent public speaker and most prolific author. Her voice, in all its forms, has become the liberal conscience on a conservative court, one that speaks out in defense of minorities, immigrants, criminal defendants and death row inmates.
In the census case, her concern was that Hispanics would fear the citizenship question and choose to go uncounted. That would harm areas with large immigrant populations, which tend to be Democratic, both in terms of federal funds and seats in Congress.
“Nobody doubts that there will be less people reported,” Sotomayor said. “The enumeration is how many people reside here, not how many are citizens. That’s what the census survey is supposed to figure out.”
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Sotomayor’s Hispanic connections run deep. During her Senate confirmation hearing in 2009, she was forced to explain her hope that “a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Her explanation stressed what she has sought to do ever since: inspire young people of all ages and backgrounds “to believe their experiences would enrich the legal system.” She has embraced her roots, returning frequently to her native Bronx, N.Y., as well as to Puerto Rico, where her parents were born. Her public appearances, from Alaska to South Africa, often draw thousands; her autobiography and children’s books, tens of thousands more.
That makes Sotomayor more than a Supreme Court justice: She is a role model. Speaking recently at George Washington University to an audience composed largely of Hispanic grade-school students, she urged them to read her recent children’s book, “Turning Pages: My Life Story,” in English or Spanish.
“Every part of this book is what’s happened to my life,” she said. “The pictures in this book are the pictures of my life. And they can be the pictures of your life, by the way. Because everything I did, I did through reading and through education.”
Most liberal justice
Sotomayor was President Barack Obama’s choice to fill the first Supreme Court seat that became vacant on his watch, and she has not disappointed. Since winning Senate confirmation, 68-31, and being sworn in Aug. 8, 2009, to succeed former associate justice David Souter, she has been a reliable member of the court’s liberal wing.
These days, she may be the court’s most liberal member. She and Associate Justice Ruth Bader Ginsburg, the grande dame of the court’s left flank, agreed in 93% of the court’s cases last term. Over the past two terms, as the court moved further to the right, Sotomayor has penned more dissents than any other justice.
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She is best known for her opinions on civil rights, privacy rights and criminal justice, including prisoners on death row:
• Last year, she wrote a 28-page dissent from the court’s 5-4 decision upholding President Donald Trump’s ban on travel from several Muslim-majority nations, and she summarized it for 20 minutes from the bench. After quoting extensively Trump’s words during and after the 2016 campaign to illustrate what she called “his apparent hostility toward Muslims,” she said, “A reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus.”
The dissent won praise not only from liberals but libertarians who originally opposed her confirmation. Ilya Somin, a law professor at George Mason University who testified in 2009 against Sotomayor’s views on property rights, said, “I think she nailed it exactly right.”
• When the high court in 2015 upheld states’ use of a controversial lethal injection drug in executions, Sotomayor’s dissent compared it to “what may well be the chemical equivalent of being burned at the stake.” She has continued to oppose executions for that and other reasons, including the court’s insistence that prisoners propose their own alternate method.
• In 2014, when the court ruled 6-2 to uphold Michigan’s ban against racial preferences in state university admissions, Sotomayor took on Chief Justice John Roberts for his prior statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
“The way to stop discrimination on the basis of race,” she said, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
• In a major 2012 privacy rights case, the court ruled unanimously that police could not attach a GPS device to a car without a warrant in order to monitor its driver’s movements. Sotomayor, a fierce defender of privacy rights, was the decisive majority vote.
In a concurring opinion that garnered more attention, she warned that the intrusion could reveal “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”
Frequent, forceful dissents
As the court has trended more conservative in recent years, Sotomayor’s objections have become more frequent and forceful.
In the 2017 term, when conservatives dominated the court’s verdicts, she dissented in cases favoring police officers who she said “shoot first and think later,” corporations that engage in “conscience-shocking behavior,” and states that purge registration rolls of “minority, low-income, disabled, and veteran voters.”
When the justices absolved Texas lawmakers of having drawn most of the state’s congressional and state legislative districts based on racial demographics, Sotomayor was typically steamed. Minority voters’ rights, she said, were “burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”
This past term, Sotomayor vented much of her frustration at the court’s so-called “shadow docket” – actions and orders in cases that don’t make their way to the oral argument calendar. She often dissented from the court’s decisions not to hear those cases.
Sotomayor championed prisoners complaining about solitary confinement, criminals labeled as “career offenders” using vague guidelines, death-row inmates sentenced under procedures later ruled unconstitutional, defendants claiming racial bias on juries and victims of dubious prosecutions.
She alone would have heard the case of Shannon McGee, a South Carolina man convicted in 2006 of sexually abusing his minor stepdaughter. He claimed prosecutors had withheld exculpatory evidence.
“The weighty question whether McGee is ‘in custody in violation of the Constitution’ appears to have gotten short shrift here,” Sotomayor scolded her colleagues. “With a lifetime of lost liberty hanging in the balance, this claim was ill-suited to snap judgment.”
Sotomayor’s empathy for criminal defendants often is shared by an unlikely ally: Associate Justice Neil Gorsuch, Trump’s first high court nominee. The two sit side by side on the bench and share not just inside jokes but views on criminal justice.
In November and again in January, Sotomayor was the only justice to join Gorsuch’s dissents in cases the court refused to hear. One was a drunk-driving case in which the two justices said evidence was not subjected to proper testing and cross-examination. The other involved a decision on restitution based on findings by a judge, rather than a jury.
Janie Nitze, a former law clerk for both justices, says “both of them are acutely aware that there are real people behind the cases, and that means they both treat the so-called least important case of the term with as much care as the most important one.”
“Both of them have a spine. Both of them have courage,” Nitze says. “And neither of them is looking for approval from anyone.”
Playing the ‘outside game’
Obama’s selection of the nation’s only Hispanic justice was historic at the time, and Sotomayor has used her fame for both fortune and inspiration. Her books, led by her 2013 autobiography “My Beloved World,” have made her a millionaire. Her speeches have returned her to the hardscrabble neighborhoods of her youth.
During the past five years, she has made more public appearances than any of her colleagues – 184, according to a tally by SCOTUS Map, which attempts to track the justices’ events. That’s more than the iconic Ginsburg and more than twice as many as most of the justices.
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Sotomayor’s travels go beyond the law schools and bar associations that Supreme Court justices customarily visit. She speaks to elementary school students and aspiring Latino lawyers, public defenders and immigrant rights attorneys. She has adopted retired associate justice Sandra Day O’Connor’s fight for civics education, joining the board of iCivics, the organization O’Connor founded.
An annual stop is the “Dream Big!” program sponsored by the Bronx Children’s Museum for second- and third-graders. “I want you to be me, because I am you,” Sotomayor told her young audience in a 2016 visit.
David Fontana, a George Washington University law professor, has called Sotomayor “The People’s Justice” because of her ability to move beyond legal and academic elites to everyday audiences. It’s a role, he says, that’s as vital as the one she fills on the bench.
“It’s partly her votes, but it’s partly her voice, too,” Fontana says. While liberal Associate Justices Stephen Breyer and Elena Kagan focus on influencing their conservative colleagues on legal issues, he says, Sotomayor is “playing that outside game – persuading people out there in the world, not just on the court.”