While the rest of the country was reeling from the Supreme Court’s decision in June to take away the right to abortion, Justice Sonia Maria Sotomayor was working. As her conservative colleagues planned victory tours and dinners at Morton’s, Sotomayor crafted dissents. She and her team of clerks worked to the last moment of the court’s term, laying out a case against the conservatives’ manipulation of laws and perversion of justice. And she did this despite the fact that the cases on which she was laboring may never even make it to the Supreme Court of the United States.
The cases in question were among a series that her colleagues had decided not to hear. The Supreme Court gets to choose its own cases, sifting through between 7,000 and 8,000 appeals every year to accept a tiny fraction of them. It takes just four affirmative votes for the court to decide to hear a case, or, in the official parlance, grant certiorari. This means that any four justices can effectively control the docket of the Supreme Court, determining which issues it considers. When alleged attempted rapist Brett Kavanaugh replaced the more moderate Anthony Kennedy in 2018, he, along with Clarence Thomas, Samuel Alito, and Neil Gorsuch, formed a powerful four-vote bloc to breathe life into whatever cockeyed challenge to established law and precedent conservatives could dream up. You can think of them as the Four Bro-men of the Apocalypse, busting open seals like some people open beer cans, unleashing horrors upon our world.
There is another important number that shapes the court’s docket, and that is six. With six votes, justices can deny appeals of lower court rulings that are clearly wrong, without drawing the kind of attention that comes when they hold hearings and issue rulings that proactively change the law for the worse. When Ruth Bader Ginsburg died and was replaced by Amy Coney Barrett in 2020, conservatives gained their crucial sixth vote to stop meritorious appeals from ever getting a hearing in front of the court.
What the Supreme Court hears, and what it denies, is a hidden lever of power for today’s conservative majority. It goes largely unremarked on by establishment forces, who have accepted the prospect of generational conservative control of the court. But Justice Sotomayor was having none of it, spending her final hours of the term writing a series of pointed dissents against the court’s refusal to hear appeals of unjust rulings from the lower courts.
It’s not unusual for a justice to dissent from a certiorari denial here and there, but Sotomayor dissented in five cases, all on the last day. In general, the cases were all focused on criminal justice and the use—and abuse—of state power against suspected criminals. The court refused to hear a case in which police officers used Tasers on a man after he had doused himself with gasoline, knowing full well that if they shocked him, he would catch on fire. Sotomayor dissented. The court refused to hear a case in which a prisoner killed himself while correction officers watched, never once trying to intervene. Sotomayor dissented. The court refused to hear three cases involving capital punishment. Sotomayor dissented and dissented and dissented. In each dissent, she retold the defendant’s story for the public record, maybe for the last time.
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Why You Can’t Buy Lydia Davis’s New Book on Amazon
Why You Can’t Buy Lydia Davis’s New Book on Amazon
What’s remarkable about these dissents is that if the court had agreed to hear the cases, Sotomayor likely would have found herself on the wrong end of a series of 6-3 decisions. But she didn’t write these dissents because she relishes the opportunity of losing even more spectacularly down the road. Ginsburg once said that dissents are written for a “future age”—meaning that dissents are supposed to help inspire the next generation to oppose the wrongs committed by the present court. But I believe Sotomayor’s flurry of end-of-term dissents suggests she doesn’t want to wait that long. The fire set by conservatives is raging right now, and Sotomayor’s opinions read like the ringing of an alarm bell. Her dissents serve to put the other branches of government on notice that the court is out of control.
Sotomayor’s willingness to expose what the court is doing has made her the most important liberal on the bench in recent years. Other liberals have seemed more interested in finding common ground and compromise with conservative justices or voting strategically to mitigate even greater harm, and there is value in those approaches. But Sotomayor is the one who can be relied on to point out the legal and moral failures of her conservative colleagues. She’s the one who puts progressive outrage into words.
Next term, she will be more important than ever. With the retirement of Stephen Breyer in June, Sotomayor has become the senior liberal justice on the court. That status is important because, by Supreme Court convention, the justices responsible for assigning the task of writing opinions include the chief justice and the senior justice advocating for the opposing position. In cases where the court splits 6-3 along partisan lines, Sotomayor will either be writing the main dissent or assigning it to one of her colleagues.
That prerogative alone makes Sotomayor the anchor liberal in the judicial system; she’s essentially the “minority leader” of the judicial branch of government. But unlike elected Democrats or officials appointed by Democratic presidents, Sotomayor is not constrained by the latest polling projections or the media’s fascination with white folks who eat at diners. She’s not the most powerful liberal official in America, but she is among the most free. She can use her position to tell the truth about what is happening to our country, without regard to how she will be talked about on Fox News.
The role of truth teller is one she’s grown into over time. Before Covid, when the Supreme Court conducted all of its public business in person, in a room full of onlookers and reporters, justices would occasionally “dissent from the bench.” That means they would read aloud all or part of their objection to whatever ruling the court had issued to make sure people knew they disagreed. Sotomayor didn’t use this prerogative for the first five years of her tenure. But in 2014, she dissented from the bench in Schuette v. Coalition to Defend Affirmative Action, a case in which the majority ruled that Michigan’s ban on affirmative action didn’t violate the US Constitution’s equal protection clause. In her dissent, while making a positive case for affirmative action, Sotomayor directly questioned her conservative colleagues’ skepticism toward the policy and argued that they fundamentally misunderstood racism in society.
It was a bracing rebuke, so much so that the written version likely inspired Chief Justice John Roberts to write a concurrence that was really just a rebuttal of her argument.
Sotomayor didn’t stop with affirmative action. During oral arguments this past December in Dobbs v. Jackson Women’s Health, the case the court would eventually use to revoke the right to an abortion, Sotomayor took advantage of the opening provided by her first question to lay into the court’s embrace of the GOP’s forced-birth orthodoxy at the expense of legal precedent. She started with statistics. She pointed out that over the past 30 years, 15 justices from all kinds of political backgrounds had supported the right to an abortion before fetal viability. She reminded listeners that the law at issue in Dobbs—a total ban on abortions after 15 weeks of gestation—was invented by Mississippi Republicans who, by their own admission, had designed the ban to take advantage of the new anti-abortion justices appointed by Donald Trump: Gorsuch, Kavanaugh, and Barrett.
Then she asked a question: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Her question was a warning. The Supreme Court has no power to tax or to enforce; its power relies entirely on the public’s belief in its legitimacy. Sotomayor was warning the court that it was at risk of squandering the only currency it has.
While the corporate media portray Chief Justice Roberts as the man most concerned with the Supreme Court’s standing in the eyes of the public, his alleged concern has amounted to little more than a few year-end reports in which he pats himself on the back and tells the press the court is doing a good job. His approach reminds me of Kevin Bacon’s character at the end of Animal House, hysterically screaming “All is well!” while all hell breaks loose around him.
In practice, it is Sotomayor, not Roberts, who is most concerned with the institution’s legitimacy. We know this not only from her questions during the Dobbs hearing but from her actions: She is the one who, again and again, has been trying to stop the court from doing illegitimate things. Nowhere is this commitment to the restrained and transparent use of judicial power more evident than in her opposition to the Supreme Court’s “shadow docket.”
“Shadow docket” is the now-infamous name that has been given to the set of cases for which the Supreme Court hears and grants emergency appeals. In the past, the shadow docket was used rarely, mainly for death penalty appeals—that is, for cases in which there is a true need for emergency intervention because the state is about to kill somebody. But during the Trump years, the court increasingly granted emergency relief to the administration’s cases, overruling lower courts that had tried to stop Trump’s illegal or unconstitutional policies.
Sotomayor was arguing against this use of the shadow docket before it was cool. Wolf v. Cook County was a 2020 case about a challenge to Trump’s updated “public charge” policy, which made it even easier than it already was to exclude low-income immigrants from this country. In its “emergency” shadow docket decision, the court ruled to allow Trump’s policy to move forward. Sotomayor wrote, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.” Sotomayor went on to accuse the court of “upend[ing] the normal appellate process” in order to put a “thumb on the scale” on the side of the administration.
This past March, in Wisconsin Legislature v. Wisconsin Elections Commission, the conservative majority on the Supreme Court used the shadow docket to summarily overrule new electoral maps proposed by Wisconsin’s Democratic governor and approved by the state’s own Supreme Court. In dissent, Sotomayor called her colleagues’ decision “unprecedented,” “extraordinary,” and also “unnecessary.”
Sotomayor reserved her deepest rebuke for when the court allowed Texas’s Senate Bill 8 to go into effect last September. That bill outlawed abortions after six weeks and deputized private bounty hunters to sue pregnant people and abortion providers, effectively abolishing the right to an abortion in that state—and the court approved it on the shadow docket. In dissent, Sotomayor wrote, “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Sotomayor’s dissent from these and other opinions are dense with statutory analysis and applications of the relevant precedents and legal rules. But she never hides the ball on what the conservatives are really doing; she doesn’t blunt the reality of what’s happening with an overreliance on legal jargon. She doesn’t play it for a laugh, and she doesn’t engage in faux comity. She writes like she doesn’t care if conservatives’ feelings are hurt on their way to the opera.
She is quotable by design. The New York University law professor Melissa Murray, a former clerk for Sotomayor, described her as relentless when it came to pruning her opinions of unhelpful legal jargon. “Her principal concern, beyond getting it right, was that opinions were explained in a way ordinary people will understand.”
The Bronx-born Sotomayor—she’s earned the appellation “Sonia from the block”—has been subjected to all the predictable dog-whistle insults people use to denigrate women in power, especially women of color. She’s been called “abrasive,” a “bully,” and “not that smart” over the course of her career. A number of the attacks launched against Ketanji Brown Jackson, the first Black woman to be nominated to the Supreme Court, during her recent confirmation hearings were also deployed against Sotomayor, who was the first Latina nominated to the court. Many of the same Federalist Society pundits and conservative law professors who attacked Jackson this year also attacked Sotomayor when she was nominated by Barack Obama in 2009. Republicans and even some Democrats suggested that she had been nominated only because of her Hispanic heritage and that she wasn’t as qualified as other, white judges. There was a contingent of white men in particular who were apoplectic because Sotomayor was unashamed of her background and had suggested that her lived experiences might actually make her a better judge.
Obama shrugged off those attacks and stuck with her nomination, his first to the Supreme Court. The Democratic-controlled Senate confirmed Sotomayor by a vote of 68-31, which included nine votes from Republicans.
I don’t know that Obama or the rest of the country knew what they were getting in Sotomayor. In fact, her career leading up to the Supreme Court was full of jobs and titles that progressives consider to be demerits: She graduated from an elite law school, Yale, where she was an editor of its law review. She worked as a prosecutor in the Manhattan district attorney’s office under Robert Morgenthau. She went into private practice and represented multinational corporations. She was appointed to the federal bench by George H.W. Bush, and during her time as a trial court judge, she was not known as being particularly lenient in sentencing or easy on defense attorneys.
Sotomayor presents herself as a classic first-generation American Dream success story. Her autobiography is largely a tale of bootstraps and hard work, and she’s leaned into a wise-auntie public persona, even writing a number of children’s books.
But Sotomayor is a case study in not judging a book by its cover. There’s a famous legal-insider story about her, one retold by Irin Carmon in her excellent New York magazine profile of the justice. During her confirmation hearings, Sotomayor’s answers were careful and restrained; even her nail polish was muted in soft tones. But during a reception following her appointment, she asked President Obama if he noticed anything different about her. Then she flashed her nails, which were painted bright red: her true colors shining through.
Those colors are not necessarily ideological. Some justices show up to the court as zealots, committed to a certain ideology or method of constitutional interpretation, determined to shove their intellectual projects onto every case, regardless of the facts or problems at hand. Clarence Thomas, for instance, doesn’t believe that the federal government should have the power to do much of anything other than kill convicts and harass immigrants (I’m paraphrasing). Neil Gorsuch wants to destroy the administrative state (I wish I were paraphrasing more). These men are willing to ignore the practical impact of their decisions in furtherance of their ideological fever dreams. In the just-completed Supreme Court term, we saw the nihilism of that approach as the conservatives ignored the realities of climate change, gun violence, and health care for women, girls, and pregnant people.
Sotomayor takes a nearly opposite approach, focusing on the people involved in a dispute instead of on the ideological and political goals of the litigants. Cristian Farias, a legal journalist and longtime observer of the court, said that Sotomayor’s driving “ideology” was simply to make sure that everybody’s case gets access to the courts and a fair hearing. “All these [Supreme Court] cases that turn on arcane operations of law have real people behind them,” he explained. And while some justices seem to ignore that truth, “Sotomayor cares about the human impact of the law. She’s the people’s justice.”
Sotomayor’s direct style and substantive concern with real people harmed by the law comes together in a lot of her criminal justice decisions. The former prosecutor has been the most stalwart defender of the rights of the people against the excesses of the police since she joined the bench. In a 2016 case, Utah v. Strieff, Sotomayor dissented from a Thomas opinion in which the conservative majority allowed an illegal warrantless traffic stop to be deemed constitutional after the fact because the cop eventually found unpaid parking tickets. “Do not be soothed by the opinion’s technical language,” Sotomayor wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.” Again, she is writing for the benefit of people out on these streets today—even going so far as to address them directly (“you”)—not law students sometime in the future.
Sotomayor has also been the most outspoken justice in recent years against the death penalty and the way the current ruling conservatives apply it. In a 2018 case, Irick v. Tennessee, Sotomayor dissented from the court’s denial of a stay of execution to a death row inmate who argued that the state’s cocktail of death would be excruciatingly painful. She described the likely “horrific” final moments of Irick’s life and wrote that if the government permitted this, “then we have stopped being a civilized nation and accepted barbarism.” In 2021’s Johnson v. Precythe, a case in which Ernest Johnson requested to be killed via firing squad rather than suffer the excruciating pain of a pentobarbital injection, Sotomayor called out Kavanaugh for his “empty gestures” in death penalty opinions.
Her most important dissent might be in the case U.S. v. Higgs, in which the Supreme Court overturned lower court rulings staying the execution of Dustin John Higgs. Some might remember that near the end of the Trump administration, Attorney General Bill Barr resumed the practice of federal executions, something the government hadn’t done in almost 20 years, initiating a killing spree by the Department of Justice. Sotomayor tried to get people to see what Trump and Barr were doing. In her dissent, she wrote that the federal government had executed three times as many people during the final six months of Trump’s term as it had in the previous six decades—and she listed the names of all the executed. She explained how the court had made a habit of ignoring credible appeals and even removing stays of execution granted by the lower courts. “This is not justice,” she concluded. “After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not. Because the Court continues this pattern today, I dissent.”
The only sitting justice to have served in a district attorney’s office is now frequently the only one willing to give voice to the last pleas of the condemned.
Sotomayor has yet to receive the mainstream media attention and “icon” status of the justice she’s most often compared to: Ruth Bader Ginsburg. That’s despite the fact that Sotomayor writes in an approachable style, has appeared at many public-facing events, and, in many ways, is more progressive in her opinions than Ginsburg was.
Comparing people from different eras is generally best left to the realm of barroom sports debates. I have no horse in the race between judicial Billie Jean King and judicial Serena Williams. But there is one area where Sotomayor has clearly outdone her Hall of Fame former colleague: in her hiring of law clerks. Justices typically hire four clerks a year, and becoming a Supreme Court clerk is generally the capstone on a legal résumé, opening doors to academia, the bench, and high-dollar jobs in private practice. In fact, only three of the current justices have not clerked for a Supreme Court justice, and they are Thomas, Alito, and Sotomayor.
Ginsburg served on the Supreme Court for 27 years yet managed to hire only one African American clerk in all that time. It was a blind spot in her thinking, a demerit on her legacy, and it is a mistake Sotomayor has not repeated.
Sotomayor’s clerkship tree is large and diverse. David Lat, a longtime chronicler of Supreme Court clerks and the judicial process, told me, “Since joining the court in 2009, Justice Sotomayor has been the leader on the court in hiring diverse law clerks…. By my rough calculations, around a third of her clerks have been people of color—about twice the historical percentage for Supreme Court clerks generally. Her hires have included the first Native Hawaiian to clerk for the court [Kamaile Turcan], and the first Black woman to serve as the president of the Harvard Law Review [Imelme Umana].”
New York University’s Melissa Murray said that the justice also takes chances on people who don’t follow the traditional path of going to one of the country’s top law schools. One hire that stands out is Sparkle Sooknanan, who became the first-ever Supreme Court clerk from Brooklyn Law School when she was hired by Sotomayor in 2013.
There is another aspect of Ginsburg’s legacy that people hope Sotomayor improves on: retirement. On the politics and culture website Lawyers, Guns & Money, Paul Campos, a professor at the University of Colorado, has already called on Sotomayor to retire “no later than the summer of 2024” should Democrats retain control of the Senate in the upcoming midterms.
It is, sadly, not a crazy suggestion. Sotomayor is 68 years old and has lived with Type 1 diabetes since she was a child. As Covid continues to ravage our nation, everybody knows that she is at a higher risk, but not everybody cares. While Sotomayor has so far remained masked when she has appeared in person at Supreme Court hearings, Neil Gorsuch, who sits right next to her on the dais, could not be bothered to wear a mask for much of the past term or concern himself with the health of a colleague. Sotomayor is forced to work with Republicans, and their lack of decency could well diminish her life expectancy.
I think calls for Sotomayor to retire now are a tad premature. She’ll be 70 by the time the next presidential election rolls around, and even if a Republican should win it, absent accident or tragedy, we can expect Sotomayor to live to see the 2028 election, when she’ll be 74 (the age Thomas is now), or hang on until the 2032 election, when she’ll be 78.
But if Biden should win reelection in 2024 and have a Senate willing to let him pick federal judges, retirement could be the better part of valor. Sotomayor is an extraordinary voice, but her vote is the thing that is indispensable. She can’t let that vote fall into conservative hands, even if it means losing her voice a little earlier than she might like.
Sotomayor has long placed the people of this country over her personal ideology. When it comes to her retirement, Murray expects that she’ll continue on that path. “She will make a decision, but she will have no vanity about this. She understands that this is bigger than her.”
Until that time, Sotomayor may not be able to stop the injustice wrought by conservatives all by herself, but she can expose it. She can explain it. And she can inspire people to take it on—not in the far-off future, but in the here and now.