Sotomayor finds her voice among the justices

New York Times News ServiceMay 6, 2014 

— “I am a lawyer’s judge,” Justice Sonia Sotomayor said last year. “I write very technically.”

That was true at the time. But something has changed in the current Supreme Court term. In opinions concerning human rights abuses, the death penalty and, most notably, affirmative action, Sotomayor has found her voice.

“She’s setting a public agenda,” said Cristina Rodriguez, a law professor at Yale. “She’s looking for her moments. And her willingness to talk about how biography informs judgments challenges a lot of people’s notions about what the law is supposed to do.”

Sotomayor, 59, is approaching her fifth anniversary on the Supreme Court, where she has emerged as an increasingly confident figure. In the last term, she asked more questions than any other justice. In the current one, she has staked out positions that have led to testy exchanges with colleagues across the ideological spectrum.

She is a kind of folk hero to the adoring crowds who attend her public appearances by the thousands. Her memoir, which told the story of her ascent from a housing project in the Bronx, was a best-seller. Some call her “the people’s justice.”

Others attacked her in unusually personal terms after she became the first beneficiary of affirmative action to defend the practice from the Supreme Court bench, summarizing in emphatic and impassioned tones her 58-page dissent from a ruling upholding Michigan’s ban on using race in admissions decisions at the state’s public universities.

“Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”

National Review called the dissent “legally illiterate” and “a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law.” Linda Chavez, a New York Post columnist, said Sotomayor was “unable to divorce her legal reasoning from her own sense of racial grievance.”

Both articles said Sotomayor’s reasoning was of a piece with her most famous comment, made in a 2001 speech as a federal appeals court judge.

“I would hope,” she said, “that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” At her 2009 confirmation hearings, Sotomayor disavowed the remark, saying it was a “rhetorical flourish that fell flat.”

Last month’s dissent, in Schuette v. BAMN, was a mix of legal analysis, historical overview and policy arguments. It looked closely at the governing precedents, reminded readers of the legacies of slavery and Jim Crow, decried recent “discriminatory changes to voting procedures” and reproduced graphs on declining enrollment rates for black and Hispanic students at public universities in states that have banned race-conscious admissions. But what stood out was a fairly brief reflection about what it was like to grow up Puerto Rican in New York City.

“Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’ regardless of how many generations her family has been in the country,” she wrote. “Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.”

Sotomayor seemed eager to tangle with Chief Justice John G. Roberts Jr., who was raised in middle class comfort in Indiana. She called his views on race “out of touch with reality.”

He responded with a tart concurrence. “It is not ‘out of touch with reality,’” he wrote, “to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and - if so - that the preferences do more harm than good.”

Justice Clarence Thomas, the other beneficiary of affirmative action on the court, did not write separately in last month’s decision. But he has made plain, in a memoir and in earlier opinions, that he views racial preferences as toxic.

“When blacks take positions in the highest places of government, industry, or academia,” he wrote in a 2003 dissent, “it is an open question today whether their skin color played a part in their advancement.”

Sotomayor and Thomas both graduated from Yale Law School, and they wrote about their experiences in their memoirs. She found her time there intimidating and inspiring. He called his decision to attend a mistake.

“I felt as though I’d been tricked, that some of the people who claimed to be helping me were in fact hurting me,” he wrote. “It was futile for me to suppose I could escape the stigmatizing effects of racial preference.”

In her Supreme Court opinions, Sotomayor has introduced a new vocabulary. She was the first to use the term “undocumented immigrant.”

In her recent dissent, she proposed another change. “Although the term ‘affirmative action’ is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies,” she wrote, “I instead use the term ‘race-sensitive admissions policies.’”

Justice Ruth Bader Ginsburg joined Sotomayor’s dissent in the Michigan case, which was decided by a 6-2 vote. But the two justices have recently been trading barbed footnotes. In a January concurrence, Sotomayor said the other eight justices had created “deep injustice” by making it harder to sue foreign companies in U.S. courts for complicity in human rights abuses abroad.

Ginsburg, an understated writer, responded in vehement detail that her colleague had mischaracterized the trial record and misinterpreted the leading precedent.

In 2012, dissenting in an 8-1 decision on eyewitness testimony, Sotomayor similarly accused the majority of ignoring its own precedents and a wealth of new knowledge. Ginsburg responded that Sotomayor was “inventing a ‘longstanding rule’ that never existed.”

In February, in a public interview at Yale Law School conducted by Linda Greenhouse, a former New York Times reporter who teaches there, Sotomayor said she had never issued an oral dissent, an unusual move that happens just a handful of times a term and is meant to signal profound disagreement.

“Announcing it from the bench is like entertainment for the press,” she said.

Two months later, she overcame her reluctance in the Michigan case, speaking for more than 10 minutes. Several of her colleagues seemed tense, impatient and grim as she spoke, and entertainment was not the first word that came to mind.

In the Yale interview, she reflected on the role of dissents and their varying audiences.

“Often, you’re talking to Congress,” she said. “Sometimes, you’re talking to the executive branch. Sometimes, you’re talking to the public in the sense of engaging them around an issue that might get missed.”

She gave an example, and it again involved racial stereotypes.

The case arose from a federal prosecutor’s comments at a 2011 drug trial in Texas. The remarks, she wrote, “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”

The defendant, Bongani C. Calhoun, testified that he had not known his companions had planned to buy drugs. The prosecutor, Sam L. Ponder, responded with a skeptical inquiry.

“You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money,” he said. “Doesn’t that tell you - a light bulb doesn’t go off in your head and say, ‘This is a drug deal?’”

Calhoun was convicted, and the Supreme Court declined to hear his appeal. Sotomayor said the court was right not to intervene because Calhoun’s lawyer had failed to object.

But she nonetheless issued a statement “to dispel any doubt” about “our tolerance of a federal prosecutor’s racially charged remark.”

Ponder’s statement, she wrote, “was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.”

Sotomayor issued a similar protest in November, dissenting from the court’s refusal to hear a challenge to an Alabama law that allows judges to override jury determinations calling for life sentences. She listed the names of 95 inmates sentenced to death thanks to such overrides.

That dissent, she said at Yale, had another purpose: “to get my colleagues thinking.”

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