With the conclusion of the Supreme Court’s 2015-2016 term, the New York Times has provided a helpful infographic on how things shaped up. The title provides the kicker: When the Eight-Member Supreme Court Avoids Deadlocks, It Leans Left. Essentially what we have is a solid 4-person liberal majority with Justice Kennedy occasionally joining them.
One move that has shown up during this term is that Justice Sonia Sotomayor has now inched into being the most liberal member of the Court. She is now just slightly to the left of Justice Ruth Bader Ginsburg (with Justice Elena Kagan right on her heels).
Of course, this kind of assessment isn’t all that meaningful aside from the actual positions these justices took. That is where the analysis of Sotomayor’s role on the Court by Ian Millhiser comes into play. First of all, he points to what she wrote in her dissent on Shelby v Holder – which gutted portions of the Voting Rights Act.
Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. 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. 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. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
He also walks us through the behind-the-scene work Sotomayor did the first time the Court ruled on Fisher v. University of Texas at Austin, which set up the ruling recently that maintained affirmative action in college admissions.
According to Supreme Court reporter Joan Biskupic, the justices initially split 5-3 after the 2012 oral arguments in Fisher (Justice Elena Kagan was recused), with the majority intending to strike down UT’s affirmative action plan. In response, Sotomayor “drafted a dissent suffused with the personal experience of her Puerto Rican Bronx background.” The justice’s message to her conservative colleagues, according to Biskupic, could be summarized as “you haven’t lived it and you don’t get it.”
With tensions growing within the Court, Justice Stephen Breyer, a center-left Clinton appointee, saw an opportunity to broker a compromise, and he eventually convinced Kennedy to pen a more moderate opinion allowing affirmative action to survive another day. Seven of the eight justices hearing this case eventually signed on to this opinion.
But it is her (sometimes lonely) defense of the Fourth Amendment that has made her stand out – even from the other liberal justices.
Justice Sotomayor has made reinvigorating the Fourth Amendment, with its bar on “unreasonable searches and seizures” into a pet project — and it’s a project that stretches far beyond the unsympathetic litigants that sometimes inspire her lonely dissents. “We can’t keep bending the Fourth Amendment to the resources of law enforcement,” a frustrated Sotomayor cautioned in a 2015 oral argument.
One of the problems with our current criminal justice system is the way it is perpetually bent towards prosecution – especially when it comes to upholding the rights of poor people. That is evident when we look at everything from the amount of money we invest in prosecutors (as opposed to public defenders) to the way our court system is stacked with those who have prosecutorial experience. The latter is also true of Sotomayor’s background. But perhaps this is what she meant when she said she “would 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.”
Millhiser compares the task at hand for Justice Sotomayor to the one faced by Justice Thurgood Marshall – the only other person of color to serve on the Court other than Clarence Thomas.
This was a man who’d personally faced lynch mobs while struggling to save innocent black men from a death sentence, a lawyer of unmatched skill and poise who was chased out of Southern towns with warnings that “n*ggers ain’t welcome in these parts after dark.”
Thurgood Marshall, Justice O’Connor wrote, continuously forced his colleagues on the Supreme Court to “respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
Right now, Justice Sotomayor is often alone in bringing this “wise Latina” perspective to things like her defense of the Fourth Amendment. But as Millhiser points out, if Justices Ginsburg and Breyer retire, she will be the senior liberal on the Court. Let’s hope that the next POTUS brings in some reinforcements. In the meantime, when it comes to Justice Sonia Sotomayor, I have just two words: Thanks, Obama.