This year marks the fifth anniversary of Sonia Sotomayor becoming a Justice on the United States Supreme Court. On Tuesday, Sotomayor dissented from the court’s decision upholding a state constitutional initiative in Michigan that would prohibit the use of race-based affirmative action in admission to Michigan public universities. Decades from now, because of her dissent, we might look back on Tuesday as the day she really arrived on the court.
In my earlier writing for this magazine and in a recent symposium essay for The Yale Law Journal, I argued that Sotomayor, uniquely among recent liberal justices, has used her public appearances to effectively communicate her liberal perspective on the constitution to regular members of the public, in addition to legal and academic elites. Tuesday featured something related, but new for her: Sotomayor’s dissent suggests that she can uniquely communicate with the regular public via her written opinions as well. Let’s call this the “Sotomayor Style,” and for liberals it could be strategically significant.
Consider this language from Sotomayor’s dissent, which is so unusually compelling in its simplicity in describing the daily experiences of millions of Americans:
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 grows 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.”
To see why this language matters, let’s put aside the merits of the case, which Jeffrey Rosen ably discussed, and focus on the audiences that this Sotomayor Style enables her to reach.
The Sotomayor Style includes arguments that will persuade the normal audiences that justices must reach. The legal elites who evaluate and implement court opinions should be satisfied that her 58-page dissent is replete with discussions of legal cases and legal facts. The academic elites who critique court opinions should be satisfied that she relies extensively on one of the most important constitutional theorists of the twentieth century, the law Stanford Law School dean and Harvard and Yale law professor John Hart Ely. Sotomayor even digs deep enough in the academic literature to refer to unpublished work posted on a widely used academic website for research papers, the Social Sciences Research Network, something that the court has done only a few times.
What makes this Sotomayor Style different from the style of opinion of other recent liberal justices, though, is its unique ability to reach and persuade regular citizens. Justices have a strategic interest in convincing regular citizens of the merits of their view of the constitution, and a judicial opinion can be a helpful tool of persuasion. If the public is persuaded by a justice’s opinion, then presidents who must be sensitive to public opinion will be more likely in the future to nominate federal judges or other justices who share that constitutional vision. There is also strong evidence that decisions by the court tend to be consistent with national public opinion—meaning that by convincing regular citizens a persuasive judicial opinion could eventually shape the decisions reached by a majority on the Supreme Court.
The Sotomayor Style is able to cultivate public opinion through two unique features. First, she uses practical and therefore easily comprehensible language in her opinion. The usage of practical language in a judicial opinion will reach regular citizens more because it gains more mass and social media attention. I am not aware of any direct empirical evidence, but it is safe to assume that a small number of Americans read Supreme Court opinions. It is safe to assume that many millions more read the media coverage of these decisions. Talking about what the case means in practical language makes an opinion more likely to be covered by the media—and thus more likely for regular Americans to know about it. Once known, the usage of practical language in a judicial opinion makes regular citizens more likely to understand and therefore appreciate and be persuaded by the opinion.
Sotomayor made sure to use such practical language when reading her dissent from the bench when the court convened on Tuesday morning. In addition to the quotation above from her written dissent, consider this language from it:
In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race 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. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
Sotomayor uses all of this practical language in service of a basic, everyday theme: “race matters” and to think otherwise would be “out of touch with reality.” Race matters “because of the long history of racial minorities being denied access to the political process.” Race matters “because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities.”
Sotomayor doesn’t just use practical language that appeals to everyone, but knows the practical language that best captures the diverse experiences of different communities. Sotomayor explicitly notes that she will not be using the phrase “affirmative action” but instead the phrase “race-sensitive admissions policies.” She talks about white college graduates passing on their race-sensitive “historical privilege” in a way that minority students cannot. She talks about the minority communities as often “historically marginalized.”
Sure enough, with this practical language, the media coverage of her dissent has been astronomical and immediate, and the social media response by regular citizens has been enormous. The Washington Post headline focused on her dissent rather than the court’s decision: “Sotomayor Accuses Colleagues of Trying to ‘Wish Away’ Racial Inequality.” That story was the second most e-mailed story from Post the morning after the decision. The New Yorker described her dissent as “eloquent” and New York Magazine as “epic.” In a speech the day after the decision, Attorney General Eric Holder stated that Sotomayor’s dissent was “courageous,” noted its “personal” style, and quoted verbatim some of the more compelling practical language.
The other feature of the Sotomayor Style that makes it strategically promising as a means to reach persuade regular citizens is how it combines practical language on the bench with her best-selling autobiography, My Beloved World, and her personal discussions during her public appearances. What someone says works better if there is a compelling message along with a compelling and fitting messenger. Much research suggests that people notice and respond more positively to a message that has a face with a story attached to it. The media is more likely to cover and cover favorably messages that include faces with stories attached to them. We respond not just to Barack Obama’s 2004 Democratic convention speech about one America; we respond to the fact that this message was delivered by a messenger who was biracial.
Sure enough, the coverage of the Sotomayor dissent has featured the language from her dissent joined together with her personal story to form a coherent narrative. The first sentence in the Post story about the decision talked about Sotomayor’s “move from a Bronx housing project to the upper echelons of American law”; the Times covered the same narrative.
To be sure, other justices use elements of the Sotomayor Style. Antonin Scalia’s writing is particularly compelling to regular citizens. Chief Justice John Roberts’s opinions occasionally feature a catchy slogan that resonates—think back even to his Senate confirmation hearings when he said judges are umpires merely calling balls and strikes. Some of Elena Kagan’s earliest opinions feature compelling practical language. None of these justices, though, can combine this practical language with a personal story that matches their language. Clarence Thomas can and does use the full Sotomayor Style, but after nearly 25 years on the court it’s clear that he does so only rarely.
The court’s decision about affirmative action will not make enormous changes to how the issue is discussed and practiced in the United States. But if it is the start of a pattern, then Sotomayor’s dissenting opinion might be the real legacy of the case, and one that could change the prospects of liberal constitutional law going forward.
David Fontana is Associate Professor of Law at George Washington University School of Law