Pandemic life cannot be a welcome change for Sonia Sotomayor. The justice is a people person, so much so that her clerks have been known to gently encourage her to leave events, at which she can be the last one in the room chatting up the service staff. In normal times, Sotomayor lunches with those clerks in her chambers and personally fulfills their snack orders at Trader Joe’s (Sotomayor prefers the dried mango). She likes crowds enough to voluntarily go to Times Square on New Year’s Eve to preside over the ball drop. Until the inauguration last month, where she swore in Kamala Harris, the biggest crowd Sotomayor had been spotted in was the one at Ruth Bader Ginsburg’s funeral, where she was the only justice in a face shield. Sotomayor is 66 and has type 1 diabetes, putting her at high risk.
COVID times have also robbed Sotomayor of her usual discursive style at oral argument. In the Court’s most recent full pre-pandemic term, she asked the first question of advocates one-third of the time, more than anyone else. Last spring, when the justices were compelled to switch to livestreamed phone calls, rigidly moderated by Chief Justice John Roberts, an analysis by law professor Leah Litman found Sotomayor was the likeliest to have her questioning cut short.
And yet a dozen years into her tenure, Sotomayor’s voice is resounding far beyond the audience of Court watchers. She has won over those skeptical of her nomination, among them law professor and journalist Jeffrey Rosen, whose 2009 New Republic story infamously quoted anonymous doubters calling her “not that smart and kind of a bully on the bench.” Rosen told me, “In 2019, I had the opportunity to apologize to Justice Sotomayor for that piece, which was rightly criticized. Justice Sotomayor has proved to be a powerful voice of liberalism on the Court, and her role has become all the more central since Justice Ginsburg’s passing.”
Sotomayor is also poised to take over Ginsburg’s role as the functional minority leader. There are calls for 82-year-old Stephen Breyer to retire while a Democratic president and Senate can replace him, and Joe Biden has promised to nominate the first Black woman to the Court. On a Court that runs on seniority, Breyer’s move would anoint Sotomayor as the most senior justice in what is usually, in the most heated cases, the resistance — the true heir to Ginsburg and, before her, John Paul Stevens and Thurgood Marshall.
This would make Sotomayor the commander of the losers, at least in the short term. Just in time for Democrats to gain a fragile governing trifecta, the far right has captured the Court with a six-justice majority, ready to thwart whatever Biden may attempt. The undignified assaults of the Trump era are now mostly behind the Court, leaving the conservative justices free to resume their long-standing wish lists — taking a buzz saw to reproductive, LGBTQ, workers’, and civil rights and to remedies to racial injustice or curbs on criminalization. At this point, with Donald Trump having named three youthful justices to lifetime tenure and liberal calls for packing the Court a distant dream, it would take an untimely death or unforeseen retirement to change the basic, Sisyphean math.
There are many ways to approach the oppositional role. Ginsburg seemed to see her job as keeping the liberals together on the big cases, and when they formed a united front, it gave her the power to assign dissents. Sotomayor often dissented alone.
Toward the end of Ginsburg’s life, a curious dynamic emerged: She and Sotomayor often formed a dissenting duo on what passes for the left of the Court. Fellow Democratic appointees Breyer and Elena Kagan would often either write a less incendiary dissenting opinion (as they did in the case that upheld Trump’s Muslim ban) or join the majority (as they did in the opinion that allowed states to opt out of Obamacare’s Medicaid expansion), perhaps to dilute its poison, a habit that in some contexts has been labeled “appeasement” by liberal law professors.
But that was a strategy crafted when Anthony Kennedy, and even, sometimes, Roberts, might have been open to joining the liberals in a compromise. It’s a much longer shot on the 6-3 Court Ginsburg has left behind. In a handful of opinions issued since her death, on abortion, the death penalty, and COVID-19 restrictions, there have been glimmers that Kagan, who is rarely described without the words strategic and brilliant appended to her name, is moving toward Sotomayor’s corner by joining her most furious opinions. Breyer, meanwhile, has repeatedly declined to sign on to Sotomayor’s recent dissents, even when he is on the record disagreeing with the majority, seeming to hold on to the spirit of his recent declaration that “a dissent is a failure.”
“Once the chief is not the fifth, that whole project falls apart,” says Slate’s Dahlia Lithwick. “It’s early days, but it’s possible that Kagan is making a decision recently: I’m not going to let Sotomayor be out there alone where Ginsburg used to be,” she adds. “Ginsburg and Sotomayor in all of these years have been written off as crackpottery of the wild left, whereas it is in fact what the Burger Court and the Rehnquist Court would have seen as mainstream.”
Now it’s Roberts, a lifelong acolyte of the conservative legal movement, who is not only branded a leftist crackpot by the right but is irrelevant when conservatives no longer need him to get to five. Only surprise apostasy from at least one of the new justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — can stop the right now.
January 20 was solemn, barely an exhale, but being there had to feel like a return to form. Sotomayor wore jaunty cobalt-blue slacks, harmonizing with the rest of the jewel tones onstage. The first Black and South Asian American vice-president had chosen the first and only woman of color on the Court to swear her in. The now-defunct Blessed Sacrament School in the Bronx was well represented, having educated both Sotomayor and her inauguration co-star Jennifer Lopez. (Some of Sotomayor’s clerks have affectionately nicknamed her “Sonia From the Block.”) When the justice graduated from Blessed Sacrament, Sister Mary Regina wrote in her yearbook, “This girl’s ambitions, odd as they may seem, are to become an attorney and someday marry.”
Sotomayor went first, lightly flubbing the intonation of Harris’s name. Roberts, as is tradition for a chief justice, swore in the president. Everybody could silently agree on something: Without knowing what will happen next, it is a new era for the Court.
A few years ago, Sotomayor’s onstage event at Berkeley Law had to be paused because of a sound issue. Her former clerk, law professor Melissa Murray, immediately identified the cause: Sotomayor’s teardrop-shaped hoops were audibly rubbing against the microphone. The justice was good-natured about it. “I’ve been taught to wear — or not taught, I have not learned — to wear close-cropped earrings,” she said. “I like big earrings.” The students cheered.
“I’m me,” Sotomayor conceded. “I’m willing to change but not in everything.”
Murray reminded her that during Sotomayor’s nomination hearings, she painted her nails inoffensively neutral colors until her swearing in.
“I walked up to the president when he was celebrating my confirmation, and I said, ‘Do you notice anything different?’ ” Barack Obama did not. Sotomayor held both hands up to her face and grinned. “ ‘They’re red.’ ”
Later on, Sotomayor did something I’ve never seen any other justice do, wading into the audience to command the microphone and take questions, punctuating answers with hugs and offering to take photos before the students even had to ask. “You were like Oprah,” said Murray, amused.
This kind of ease in public didn’t always come naturally to Sotomayor. In her memoir, My Beloved World, far more intimate and lyrical than your usual Court wonkery and written with an Iranian American poet named Zara Houshmand, Sotomayor describes her childhood in the Bronxdale Houses as “a state of constant tension punctuated by explosive discord, all of it caused by my father’s alcoholism and my mother’s response to it, whether family fight or emotional flight.” At 7 years old, Sonia fainted in church. She was rushed to the doctor’s office, where she was so terrified of the needle during the blood draw that she bolted, hiding under a parked car in a ball, as small as she could make herself. She was eventually diagnosed with diabetes. “But the disease also inspired in me a kind of precocious self-reliance that is not uncommon in children who feel the adults around them to be unreliable,” she wrote. Eventually, she learned to wield the needle herself.
Sotomayor’s nickname in her family was Ají (“hot pepper”). “Perhaps my eventual enjoyment of being a litigator owes something to the license it gave me to disagree more openly with people,” she wrote. These are, of course, traits expected of the Manhattan prosecutor and law-firm partner Sotomayor was before she was a judge, though you will be shocked to learn they redounded differently for a young Latina from the Bronx, sterling Princeton and Yale Law credentials notwithstanding. When David Souter retired in 2009 and word spread that Obama was considering Second Circuit judge Sotomayor, certain legal elites scrambled to dissuade him.
In public, there was Rosen’s piece. In private, there was the letter from Harvard professor Laurence Tribe that was later leaked to and published by Ed Whelan, the conservative lawyer who more recently became notorious for using Zillow to craft an improbable sexual-assault defense of Kavanaugh. Tribe was pushing for the appointment of Kagan, his sometime Harvard dean, and claimed Sotomayor was “not nearly as smart as she seems to think she is.” Tribe recanted soon after. “Literally everything Justice Sotomayor has said, written, and done as a Member of the Supreme Court since her confirmation in 2009 has confirmed my confession of error and President Obama’s wisdom in overcoming the doubts I’d expressed,” he told me in an email. “Her judicial opinions, including particularly her impassioned and logically rigorous and legally incisive dissents, have greatly enriched the jurisprudence from which a more enlightened and humane Court will be able to draw when the pendulum of judicial appointments swings back from the extreme rightward tilt of the current era.”
Some of the criticisms came by way of the speakers telling on themselves. “If you had come up with a list of people in our class that would be named to the Supreme Court,” one Yale Law classmate told the Yale Daily News, “she would not have been on it.” On TV and in print, the conversation became about box-checking. (“He’s supposed to pick a Latina,” Chris Matthews mused. “Would he do that just because that’s sort of the unfilled void in his patronage plan so far?” Richard Cohen wrote, “The ceiling is further lowered by the need to season the court with diversity, a wonderful idea as long as brilliance is not compromised.” One Mark Halperin headline read: “White Men Need Not Apply.”)
Her clerks are still, understandably, fuming. “These are all extremely tired racist and sexist tropes,” says one. “There’s plenty of white men appellate judges who, unlike her, say crazy shit, and no one says they’re bullies. They’re just ‘sharp-elbowed and intellectual.’ ” Another says, “I found it bizarre and frustrating that there was so much focus on her identity,” even though Sotomayor had excelled at elite institutions and held practically every kind of legal and judicial job. “There was no one more qualified.”
But her identity was something Sotomayor herself embraced, even when it could cost her. As an appeals-court judge in 2001, she gave a speech that would later dominate her confirmation hearings. “America has a deeply confused image of itself that is in perpetual tension,” she argued there. “We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in
a race- and color-blind way that ignores these very differences that in other contexts we laud.”
She said that, while she aspired to fairness, she questioned whether true neutrality was achievable. She quoted a favorite line of Sandra Day O’Connor’s that a wise old man and a wise old woman would come to the same conclusion on a case, but Sotomayor begged to differ, first because there could never be a universally agreed-upon definition of wise. “Second, I 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,” she said. Her critics homed in on the word better and not the very next sentence explaining her point: “Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society.”
Amid all the angling and backbiting, President Obama kept his own counsel. According to Jonathan Alter’s The Promise, Michelle Obama favored Sotomayor, “whose experience as an isolated minority student at Princeton mirrored her own.” The president also found some of the criticism familiar. “Maybe because of my own background in legal and academic circles — where I’d met my share of highly credentialed, high-IQ morons and had witnessed firsthand the tendency to move the goal posts when it came to promoting women and people of color,” he wrote in A Promised Land, “I was quick to dismiss such concerns.” He went for it.
That summer, Ginsburg, who had gotten to know Sotomayor while overseeing the Second Circuit and was more than ready to cease being the only woman on the Court, took the opportunity to tell The New York Times Magazine’s Emily Bazelon, “The notion that Sonia is an aggressive questioner — what else is new? Has anybody watched Scalia or Breyer up on the bench?” Asked about Sotomayor proudly describing herself as the beneficiary of affirmative action, Ginsburg replied, “So am I.” She said she never would have become the first tenured woman at Columbia Law School without the Nixon administration’s affirmative-action policies.
At her nomination hearings, Sotomayor was so muted and minimalist in her responses that liberals briefly worried she was actually a moderate. It did the trick with the Senate: She was confirmed 68-31 with nine Republican votes. In the years that followed, Sotomayor didn’t hide her feelings about that time. “It was very, very painful both on the court of appeals and on the Supreme Court nomination process that people kept accusing me of not being smart enough,” she said at an event. “Now could someone explain to me, other than that I’m Hispanic, why that would be?”
For all of her ideological affinity with Ginsburg, the latter came from another generation and a more formal world. “I sit and listen to my colleagues talking about all the operas they go to. They can name every opera singer; Ruth Bader Ginsburg [can name every one] that she’s ever heard, what performance and where. I can’t do that,” Sotomayor said in 2014. “When you move from one world to the next, you can sometimes feel alien from all.” At one point, Sotomayor kept two chairs and a table outside her chambers on the Court’s second floor. “Justice Kennedy loved referring to this as Cantina Sotomayor,” recalled a former Supreme Court clerk. Kennedy once even pretended to order a drink.
On the Second Circuit, Sotomayor had easily made friends with judges across the aisle. The Supreme Court was chillier, though she was on first-name terms with the elevator operators, who would light up when they saw her. According to Joan Biskupic’s 2013 biography of Sotomayor, Breaking In, the justice’s unexpected salsa routine at an event for clerks got the recently widowed Ginsburg on her feet, if reluctantly, but left others cold. “They thought she was calling too much attention to herself, revealing a self-regard that challenged more than the Court’s decorum,” Biskupic wrote. “One justice and one top Court officer said separately that it was just too much blurring of the lines between the clerks, who traditionally took the stage at the party, and the justices, who sat in judgment in the audience.”
Sotomayor, it should be noted, considers herself rhythmless and came to salsa late, after discovering she could swing it with a strong lead. “I have a facility that some of my colleagues would find very strange,” she said at her Yale Law reunion in 2014. “I can follow.” Beside her, Justice Samuel Alito widened his eyes. “It’s a revelation to know that Sonia likes to follow,” he said. Referring to the private meetings where the justices take initial votes on cases, he said, “I think we’re going to start dancing in the conference room.”
Uprooted from her life and social circle in the West Village — Sotomayor is divorced and has no children — she continued making her clerks feel welcome, inviting them and their partners over to her D.C. condo, in a part of town she compared to the East Village, hosting movie nights and grilling hot dogs and chicken in the shared courtyard. She once drove two hours to be one of the first people to visit the hospital after a clerk’s wife had a baby. And she keeps in touch; when one former clerk was diagnosed with cancer, she offered to drop off food. Her new life also brought with it a financial security she hadn’t been able to enjoy even as an appeals-court judge. The year she received her $1.175 million book advance, in 2010, she was the only justice to list credit-card debt on her disclosure forms; she apparently used the advance to wipe some dental debt in the range of $15,000 to $50,000.
Above all, she went to work. “She will work you under the table,” says a former Second Circuit clerk. Courts are inundated with claims, including from people representing themselves, which are known as pro se. These are often prisoners, the poor, or both, and unlike at the Supreme Court, where the justices can and do decide not to take the vast majority of cases, courts of appeals are required to hear every case that comes to them. “I realize a lot of this sounds hagiographic, and I am wary of that,” says the former clerk. “But this is someone who, in every pro se case that came before her, dug into everything — the law, the minutiae — the same way she would in a case litigated by a top Supreme Court advocate.”
From the beginning, Sotomayor shined on criminal-justice cases. She’s the only one of her colleagues to have served as a federal trial judge, a grubby job by elite lawyer standards. Many of the other justices were professors at fancy law schools or argued more prestigious appeals. Alito was also a prosecutor, but as Sotomayor herself has said, there was a difference between her working under Manhattan DA Robert Morgenthau in the 1980s and Alito’s gig at the U.S. Attorney’s office. “You’re not in the courtroom day to day,” Sotomayor said of Alito’s job. “You can have more lofty views about the basic good in the system if you come to it at the top. If you’re someone like me who worked in the trenches, what you have experienced gives you a wider breadth of expectations.” Those experiences gave Sotomayor a deep familiarity with how that world really works, from traffic-stop to death-penalty deliberation.
That very prosecutorial background had worried some on the left who thought she might go easy on the system, but the opposite proved true. In 2016, the Court ruled on a case that involved a police officer making an unlawful stop and finding drugs. Could that evidence be used if that person already had an unrelated outstanding warrant? “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and, if a warrant comes up, searching them?” Sotomayor asked the attorney for Utah v. Strieff at oral argument. In a town like Ferguson, Missouri, Sotomayor pointed out, “where 80 percent of the residents have minor traffic warrants out,” wouldn’t police be incentivized to stop everyone? Almost a year after the Department of Justice found systemic abuse in the town where Black Lives Matter protests were kindled, it was a rare encroachment of the real world into the hallowed courtroom.
The Court, in an opinion written by Clarence Thomas, ruled against the defendant. Ginsburg joined Sotomayor’s dissent, except for one section, which began, “Writing only for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.” The defendant in the case was white, Sotomayor wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny.” In a break from the usual formalities, she drew not only on legal precedents but on popular books like The New Jim Crow and Between the World and Me.
“For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them,” she wrote. The decision, she said, “says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” She added, in a clear callback to Eric Garner’s final words, “no one can breathe in this atmosphere.” In all, she wrote eight dissents that term — two alone.
Sotomayor’s brother, she later said, got the talk.
Other justices have publicly discussed how their lives shaped their jurisprudence: Thomas’s treatment by his Yale classmates helping to convince him that laws taking race into account are the real racism; Ginsburg’s experiences of being paid less than her male co-workers informing her dissent in Lilly Ledbetter’s pay-discrimination claim. But several of the justices have seemed to particularly chafe at how Sotomayor chooses to write and speak.
Her stirring dissent in a Michigan affirmative-action case was, to Roberts, “expounding … policy preferences,” and he accused her of questioning his “openness and candor.” In a 2018 voting-rights case, Sotomayor noted the “backdrop of substantial efforts by States to disenfranchise low-income and minority voters.” Alito fumed. “Justice Sotomayor’s dissent says nothing about what is relevant in this case.”
Even her fellow liberal Breyer seemed to be subtweeting Sotomayor in a recent interview with Lithwick. “If you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first. We’re not here just to make speeches,” he said.
“Coming onto the Court in the first place meant there were glass ceilings to shatter. It seems that she’s still standing on the shards,” says law professor Michele Goodwin. “Every woman of color who has worked in corporate America or elite institutions knows what that’s like, where you recognize the urgency of the occasion, and other colleagues are like, Oh well.”
Though Kagan is portrayed as the tactician, Sotomayor’s willingness to go where many other justices won’t has sometimes yielded both substantive and strategic wins. In 2012’s United States v. Jones, she stood alone in writing the most robust defense of Fourth Amendment privacy rights in the face of law-enforcement surveillance and won praise from digital-privacy advocates for grasping how such monitoring could be abused in the internet age. “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor declared in her concurrence, prophetic now that nearly every aspect of our daily lives can be tracked by our cell phones. Six years later, Roberts wrote a majority opinion in Carpenter v. United States that heavily drew on Sotomayor’s work in Jones, essentially adopting her proposed privacy protections as the law of the land.
Sometimes the very directness Sotomayor is derided for functions as strategy. Biskupic has reported that when the Court first considered Texas’s affirmative-action plan, Sotomayor’s dissent was so stinging that Kennedy backed away and decided to punt on a procedural issue instead of killing the policy. “The reason why we have affirmative action today is totally attributable to Justice Sotomayor,” says Litman. The Court will almost certainly finish off affirmative action soon anyway, but she bought the policy some time.
The Court’s institutionalists are deeply reluctant to admit that there is anything political about what they do, and the mortar that glues together that myth is the notion that they are all a collegial family. But when Kavanaugh’s bellowing about the revenge of the Clintons at his nomination hearing undermined the façade of nonpartisan decorum, it was, of all people, Sotomayor who stepped in.
When she appeared on David Axelrod’s podcast to promote her book for kids, the host pressed her on Kavanaugh. She answered by repeating a story she said Thomas had told her. “When he first came to the Court, another justice approached him and said, ‘I judge you by what you do here. Welcome,’ ” she said. “And I repeated that story to Justice Kavanaugh when I first greeted him.” She continued, “When you’re charged with working together for most of the remainder of your life, you have to create a relationship. The nine of us are now a family.”
It had been just over a month since Christine Blasey Ford testified that Kavanaugh had assaulted her. One way to look at Sotomayor’s welcome was that however much the Court had treated her like an outsider, she would defend those within its borders, even against other women. Another was that she had decided there was no point in writing off Kavanaugh. After all, he had only just been sworn in. He could still be a gettable vote.
Such polite fictions are maintained because they are believed to shore up the Supreme Court’s legitimacy, which is properly understood as tenuous in a democracy. As agonizing as the Trump era could be for the conservatives on the Court, who broadly supported the man’s policies but winced at how he went about them, what comes next will test the institution far more.
The Court that had Roberts as its median vote was able to pick and choose which Trump incursions it could tolerate in the service of a broader political agenda and which ones it could bat down in a show of independence. Roberts could curb Trump’s attempts to rig the Census and to deport Dreamers, because they had been executed so clumsily. In the cases subpoenaing Trump’s tax returns, Roberts could split the difference on how much scrutiny presidential wrongdoing could undergo. On the Muslim ban, though, Roberts deferred to a muscular vision of executive power, choosing to simply ignore Trump’s open declarations that he intended to discriminate against an entire religion. Sotomayor, being Sotomayor, did not. Writing for herself and Ginsburg in that case, Trump v. Hawaii, she said the conservatives were “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
The ultimate test — whether the Supreme Court would decide the presidential election — was easily passed; Trump’s requests to invalidate multiple state tallies were blatantly implausible and their presentation incompetent. The challenge for the Court as an institution will be how it responds to the Biden era, with conservative soldiers like Barrett there for the long haul.
The conservative legal movement has been working for decades to get to this moment. If Biden manages to push any legislation through Congress, it will face lawsuits, likely brought by the same people who have been dragging the Affordable Care Act through the courts for the past decade. Biden’s administration was less than a week old when a Trump-appointed district-court judge blocked his 100-day deportation pause. State lawmakers who want to ban abortion, limit LGBTQ rights, and curtail voting access continue busily writing laws that the Court is more likely to uphold.
What role, then, for the ever-outnumbered opposition? To go down fighting, it seems. “She’s not pulling any punches right now,” says Melissa Murray of her former boss. “The stakes are too high for everyone.” She cites law professor Lani Guinier’s concept of demosprudence — speaking to the public to get its attention when all else fails. The same plainspokenness and engagement with the world that irritate some of her colleagues is precisely what may be her legacy.
And so this era may present an opportunity for Sotomayor’s intellectual project to be recognized — something her mentees are anxious to see. “For her clerks, it wasn’t surprising that Justice Ginsburg would achieve the kind of fame she did,” says one. “It always surprised us that there was no analog interest in Justice Sotomayor. After the dissent in Trump v. Hawaii, where is her face on a tote?” A second says, “There’s an expectation that she would play the role that she’s playing as the voice of the dispossessed and the dissenter. That underestimates the intellectual rigor and commitment behind the positions she takes.”
Sotomayor is by far the most prolific writer on the Court’s so-called shadow docket, which occurs outside of its regular schedule without full briefings or oral arguments. Justices don’t have to write to explain why they do what they do; they don’t even have to disclose how they voted, which is why it’s meaningful when they choose to do so, as Adam Feldman has pointed out on the Empirical SCOTUS blog. Many of Sotomayor’s contributions are in death-penalty cases, like the moving dissent she wrote in January, naming the 13 people the federal government had rushed to kill before the end of Trump’s presidency — more than three times as many people in six months than in the previous six decades, she pointed out. Soon after, she would spend eight pages decrying the lack of due process in the deportation of a single man, Alex Francois, who feared he would be persecuted for his mental illness if he returned to Haiti. All this was not so different from other terms, except that in three of these opinions since November, Kagan was at her side, and Breyer sat it out. It’s anyone’s guess what was happening, but here’s one theory: Breyer is on his way out, a fully radicalized Court has given Kagan a clear view of the future, and it isn’t to be spent sitting on the sidelines.
For years, the pecking order on abortion cases at the Supreme Court went something like this: Majority opinions were written by the moderate white guys (Kennedy on the center right, Breyer on the center left). When a dissent was necessary, RBG assigned it to herself, which was her prerogative as the longest-serving justice in the minority, though Sotomayor made it clear over the years that she was more than capable. In 2016, I heard her elegantly raze an anti-abortion law during oral argument, asking why it was that a post-miscarriage procedure could happen in doctor’s offices when almost the exact same procedure was being forced into mini-hospitals when it was an abortion.
Eight days before the Biden inauguration, Sotomayor had the chance to put her abortion views into the written record via the shadow docket. Once again, the procedure was being treated as something other than medicine, but with a coronavirus twist. Despite the risk of exposure to the virus, the FDA was refusing to allow patients to use telemedicine and the mail to get the pill regimen that ends a pregnancy. Roberts wrote a concurring opinion; Sotomayor dissented, with Kagan joining her. Breyer, long a staunch defender of abortion rights, voted the same way but did not join Sotomayor’s opinion.
“Government policy now permits patients to receive prescriptions for powerful opioids without leaving home,” she observed acidly, “yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision.”
When Obama nominated her, Sotomayor has said, he asked her to stay connected to the community she came from. “Mr. President,” she said she replied, “I don’t know how to do anything else.” This showed in how she chose to write the abortion dissent. “Pregnancy itself puts a woman at increased risk for severe consequences from COVID-19,” Sotomayor wrote. “In addition, more than half of women who have abortions are women of color, and COVID-19’s mortality rate is three times higher for Black and Hispanic individuals than non-Hispanic White individuals. On top of that, three-quarters of abortion patients have low incomes, making them more likely to rely on public transportation to get to a clinic to pick up their medication. Such patients must bear further risk of exposure while they travel, sometimes for several hours each way, to clinics often located far from their homes.”
Sotomayor closed with a direct plea. “One can only hope that the Government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times,” she wrote. Empathy, the same trait Obama had been excoriated for saying he was looking for in a justice before he nominated her.
Then came the tip of the hat. Having cited many of the same sources Ginsburg might have used, Sotomayor quoted the late justice directly: “[Women’s] ability to realize their full potential … is intimately connected to their ability to control their reproductive lives.” The meaning was clear. Long a dissenting force in her own right, Sotomayor would now hope to speak on behalf of her deceased colleague. But she would do it in her own voice.
*This article appears in the February 1, 2021, issue of New York Magazine. Subscribe Now!