32 newyork| february1–14, 2021
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 “appease-
ment” 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 dis-
agreeing 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 move-
ment, 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
surpriseapostasyfromat least oneof thenew justices—NeilGorsuch,
Brett Kavanaugh,andAmy Coney Barrett—canstoptherightnow.
January 20wassolemn,barelyanexhale,butbeingtherehad
tofeellike a returntoform.Sotomayorworejauntycobalt-blue
slacks,harmonizingwiththerest ofthejeweltonesonstage.The
first BlackandSouthAsianAmericanvice-presidenthadchosen
thefirstandonlywomanofcolorontheCourt toswearherin.The
now-defunct BlessedSacramentSchoolintheBronxwaswell
represented,havingeducatedbothSotomayorandherinaugura-
tionco-starJenniferLopez.(SomeofSotomayor’sclerkshave
affectionatelynicknamedher“SoniaFromtheBlock.”) Whenthe
justicegraduatedfromBlessedSacrament,SisterMaryRegina
wroteinheryearbook,“Thisgirl’s ambitions,oddasthey may
seem,aretobecomeanattorneyandsomeday marry.”
Sotomayorwentfirst,lightlyflubbingtheintonationofHarris’s
name.Roberts,asis traditionfora chief justice,sworeinthepresi-
dent.Everybodycouldsilentlyagreeonsomething:Withoutknow-
ingwhat willhappennext,it is a new era fortheCourt.Afewyearsago,Sotomayor’sonstageevent
atBerkeleyLawhadtobepausedbecauseofa
soundissue.Herformerclerk,lawprofessor
MelissaMurray,immediatelyidentifiedthe
cause:Sotomayor’steardrop-shapedhoops
wereaudiblyrubbingagainst themicrophone.
Thejusticewasgood-naturedaboutit.“I’ve
beentaughttowear—ornottaught,I havenot
learned—towearclose-croppedearrings,” she
said.“I like bigearrings.” Thestudentscheered.
“I’mme,” Sotomayorconceded.“I’mwillingtochange butnot
ineverything.”andemic 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
lastone in the room chatting up the service staff. In
normal times, Sotomayor lunches with those clerks in
herchambersand personally fulfills their snack orders at Trader
Joe’s(Sotomayor prefers the dried mango). She likes crowds
enoughtovoluntarily go to Times Square on New Year’s Eve to
presideoverthe ball drop. Until the inauguration last month,
wheresheswore in Kamala Harris, the biggest crowd Sotomayor
hadbeenspotted in was the one at Ruth Bader Ginsburg’s funeral,
whereshewasthe only justice in a face shield. Sotomayor is 66
andhastype1 diabetes, putting her at high risk.
covidtimeshave also robbed Sotomayor of her usual discursive
styleat oral argument. In the Court’s most recent full pre-pandemic
term,sheaskedthe first question of advocates one-third of the time,
morethananyone 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.
Andyet a dozenyearsintohertenure,Sotomayor’svoiceis
resoundingfarbeyondtheaudienceofCourt watchers.Shehas
wonoverthoseskepticalofhernomination,amongthemlaw pro-
fessorandjournalist JeffreyRosen,whose 2009 NewRepublicstory
infamouslyquotedanonymousdoubterscallingher“notthat smart
andkindofa bullyonthebench.” Rosentoldme,“In 2019,I had
theopportunitytoapologizetoJusticeSotomayorforthat piece,
whichwasrightlycriticized.JusticeSotomayorhasprovedtobea
powerfulvoiceofliberalismontheCourt, andherrolehasbecome
allthemorecentral sinceJusticeGinsburg’s passing.”
Sotomayoris alsopoisedtotake overGinsburg’s roleasthefunc-
tionalminority leader. Therearecallsfor82-year-oldStephen
Breyerto retirewhilea DemocraticpresidentandSenate canreplace
him,andJoeBidenhaspromisedto nominate thefirstBlackwoman
totheCourt. Ona Court that runsonseniority, Breyer’smovewould
anointSotomayorasthemost seniorjusticeinwhat is usually, inthe
mostheatedcases,theresistance—thetrueheirtoGinsburgand,
beforeher, JohnPaulStevensandThurgoodMarshall.
Thiswouldmake Sotomayorthecommanderofthelosers,at
leastintheshort term.JustintimeforDemocratstogaina fragile
governingtrifecta,thefarrighthascapturedtheCourt witha six-
justicemajority, readytothwartwhateverBidenmay attempt.The
undignifiedassaultsoftheTrumpera arenowmostlybehindthe
Court,leavingtheconservativejusticesfreetoresumetheirlong-
standingwishlists—takinga buzzsawtoreproductive,LGBTQ,
workers’, andcivilrightsandtoremediestoracialinjusticeorcurbs
oncriminalization.Atthispoint,withDonaldTrumphaving
namedthreeyouthf cestolifetimetenureandliberal callsfor
packingtheCourt a t dream,it wouldtake anuntimelydeath
orunforeseenretirementtochange thebasic,Sisypheanmath.
Therearemany waystoapproachtheoppositionalrole.Ginsburg