POLITICS JUNE 29, 2011
Monday was the last day of this year’s Supreme Court term—one widely seen as notable not for what was decided but, rather, for coming before what could be a momentous 2011-2012 term, when decisions on gay marriage and health care, to mention just two issues, could be handed down. Years from now, however, we might be talking about this term as significant for another reason: It was when Sonia Sotomayor became the most well-known and effective member of the Court’s liberal wing.
When Sotomayor was nominated to the Supreme Court in 2009, many liberals were unhappy. This unease was only magnified by her confirmation hearings. The Washington Post said that there was “little for liberals” in the hearings, and former University of Chicago Law School Dean Geoffrey Stone argued that they “did serious damage to the cause of progressive thought in constitutional law.”
Now, almost two years later, while the returns are preliminary, there are reasons for liberals to be optimistic. In her first 18 months on the Court, Sotomayor has proven to be what the Los Angeles Times has called a “reliable liberal vote.” Meanwhile, The New York Times has noted that Sotomayor has been “alert to the humanity of the people whose cases make their way to the Supreme Court. Slate said one her opinions about Miranda warnings reflected that “empathy for the vulnerable isn’t merely a choice but a necessity.”
But what is most consequential about Sotomayor’s time on the Court is how what she has done on the bench combines with what she has done away from it. Sotomayor has become the public face of the Court’s liberal wing because she seems to be what so few justices are: a real person, with the jurisprudence to match.
Justices decide cases and resolve important legal questions, but they also serve as voices for their legal perspectives—using not just their questions on the bench and their written opinions but also their public appearances to communicate their views on the law. Justice Antonin Scalia has done this well over the years, effectively mixing amusement and substance to inspire and mobilize political and social movements, as well as appeal to members of the general public. An effective voice like that of Scalia’s can also convince and motivate current and future lawyers. (The mere mention of Scalia’s name in my constitutional law classes always generates enormous and outsized excitement in my students.)
The liberal wing of the Court has needed an appealing voice for some time. Justice Stephen Breyer has been the leading spokesperson for liberal constitutionalism of late; he has written two important books articulating his jurisprudence and has appeared in the popular media and in debates with Scalia defending his theories. But Breyer has tended to engage in more academic and technical discussions. His most noted public appearances are often at law schools, universities, or think tanks.
As for the other recent liberal justices: With a few exceptions, Justices Ruth Bader Ginsburg and John Paul Stevens (who is now retired) have tended to communicate with the public in technical styles similar to Breyer’s, while Justice David Souter (also retired) rarely made public appearances during his tenure on the Court. The result has been that, while constitutional liberalism might be presented as intellectually compelling, its broad appeal is somewhat limited.
It is into this void that Sotomayor has stepped. (It’s too soon to know if Justice Elena Kagan might play a similar role). A recent poll indicated that Sotomayor has already become the most well-known member of the Court’s liberal wing. But it is what she is doing with this public awareness of her life and her role on the Court that matters most.
Sotomayor’s public appeal might be substantial, like that of Scalia, but for different reasons. We know from much academic research in areas like social psychology that the messages—in this case, legal ones—that people hear are evaluated based in part on the messengers delivering them. To a certain extent, we are more likely to agree with those messengers we like—and this seems to be helping Sotomayor.
She is likable in part because of her personality; journalists have noted that she “charms” audience members. But she also seems like a person everyone might know: a regular person with regular interests and regular problems—or perhaps even an extraordinary person who has overcome extraordinary problems. During the last few weeks of the Supreme Court’s term, newspapers reported about Sotomayor in the context of her opinions, but they gave just as much coverage to several stories reflecting on her as a person. Many newspapers reported about her June appearance sponsored by the Juvenile Diabetes Research Foundation where Sotomayor “open[ed] up about her diabetes” with “heartfelt remarks.” Two days before that, they covered Sotomayor throwing out the first pitch at Wrigley Field (appropriately wearing a Cubs jersey rather than a jersey of her beloved Yankees). Sotomayor is also at work on a book—but not one on legal theory. Instead, her publisher has revealed that it is a “coming-of-age memoir by an American daughter of Puerto Rican immigrants.”
What’s more, while some of her colleagues are known for communicating their messages primarily to elite audiences, Sotomayor has been speaking to a range of groups. She shared her perspective about persistent barriers to equality with audiences at several elite law schools and with a community college in the Bronx that helped her mother become a nurse several decades ago. During a visit in which she judged a moot court proceeding involving law students at Berkeley, Sotomayor also made a visit to a local elementary school with a commitment to diversity and a prominent foreign language program. She has also regularly visited with various groups who have come to see the Supreme Court, from special needs children to senior citizens to veterans.
Legal theories may or may not matter in convincing the public to agree with certain jurisprudential views. Regardless, it is worth noting that Sotomayor has not yet articulated a new theory of her own. Instead, her contribution in this realm—and it could be a substantial one—might end up being persuading the public to adopt a familiar view of the law that prioritizes how the legal system affects regular people. (It’s a view President Obama himself has articulated, namely when saying, before Sotomayor’s nomination, that Supreme Court justices should possess “empathy.”) And this effort, too, has been aided by Sotomayor’s relatable persona.
Sotomayor has started to talk about the law in settings around the country. During her confirmation hearings, she said that the role of judges is to “apply law to facts,” not “feelings to facts.” But, since being confirmed, she has communicated a view of judging which seems more focused on how the law influences everyday people’s lives. She noted to an audience at Kansas State University that being a judge is like being an umpire, a reference to Chief Justice John Roberts’s famous analogy but with a different take on its meaning: She suggested that umpiring and judging both involve ambiguity and using individual discretion to resolve close calls.
Sotomayor has also identified the ways in which our legal system still reflects biases against various historically disadvantaged groups. During the same visit to Kansas State, Sotomayor remarked on persistent “structural problems” that prevent the achievement of full equality for many people. In a public interview during a visit to Northwestern Law School, Sotomayor said some of the questions she faced during her confirmation hearings were symptomatic of lingering gender bias. And, at the University of Chicago Law School, she said, “People have views of me and expectations of me that are based on stereotypes.” She also said some of Chief Justice Roberts’s views on race and the law are “too simplistic.”
Meanwhile, in her work on the bench, Sotomayor has interjected a human element into otherwise technical discussions. For instance, she analyzed the constitutional problems with an overcrowded California prison in part by asking, “When are you going to avoid or get around people sitting in their feces for days in a dazed state?” Sotomayor implored the lawyer representing the prison to “slow down from the rhetoric” and discuss more thoroughly “the needless deaths” the prison caused. This approach has sometimes brought her into conflict with the conservatives on the Court—indeed, Scalia responded to Sotomayor’s statements in the prison case by sarcastically imploring her in return, “don’t be rhetorical.”
Sotomayor has exhibited a similar style in her written opinions. Last term, for the first time ever in a Supreme Court opinion, she used the phrase “undocumented immigrant,” rather than the term “illegal immigrant,” which the Court had used many times previously. Lest that be perceived as an accident, Sotomayor used “undocumented immigrant” several times again during oral arguments in a later case, even while her colleagues used “illegal immigrant.”
It is still early in her tenure, but these are all good reasons for liberal constitutionalists to feel encouraged by Sotomayor. The substance of what she says and stands for might be familiar, but her style in communicating that substance seem to be making it newly appealing. This bodes well for the liberal wing of the Court, which has been waiting years for an effective voice to promote its views to the general public. Here’s hoping it has finally found a voice with staying power.
David Fontana is associate professor at George Washington University School of Law.