february1–14, 2021 | newyork 35justices were professors at fancy law schools or argued more pres-
tigious appeals. Alito was also a prosecutor, but as Sotomayor her-
self 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 expe-
rienced gives you a wider breadth of expectations.” Those experi-
ences 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 evi-
dence be used if that person already had an unrelated outstanding
warrant? “What stops us from becoming a police state and just hav-
ing 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, Soto-
mayor wrote. “But it is no secret that people of color are dispropor-
tionate 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 Soto-
mayor 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 willing-
ness 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 surveil-
lance 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 informa-
tion 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 func-
tions 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 reasonwhy we
have affirmative action today is totally attributable to Justice Soto-
mayor,” says Litman. The Court will almost certainly finishoff affir-
mative 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 non-
partisan 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 firstgreeted
him.” She continued, “When you’re charged with working together
for most of the remainder of your life, you have to create a rela-
tionship. The nine of us are now a family.”
It had been just over a month since Christine Blasey Ford testi-
fied that Kavanaugh had assaulted her. One way to lookat Soto-
mayor’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 shoreup 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 sup-
ported 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 Robertsasitsmedianvotewasabletopick
and choose which Trump incursionsit (Continued on page 80)