80 newyork| february1–14, 2021
Sonia
SotomayorCONTINUED FROM PAGE 35could tolerate in the service of a broader
political agenda and which ones it could
bat down in a show of independence. Rob-
erts 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 sim-
ply ignore Trump’s open declarations that
he intended to discriminate against an
entire religion. Sotomayor, being Soto-
mayor, did not. Writing for herself and
Ginsburg in that case, Trump v. Hawaii,
she said the conservatives were “ignoring
the facts, misconstruing our legal prece-
dent, 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 elec-
tion—was easily passed; Trump’s requests
to invalidate multiple state tallies were bla-
tantly 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 leg-
islation through Congress, it will face law-
suits, 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 oppor-
tunity for Sotomayor’s intellectual project
to be recognized—something her men-
tees 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 intel-
lectual 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 argu-
ments. 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 Sotomay-
or’s contributions are in death-penalty cases,
like the moving dissent she wrote in Janu-
ary, naming the 13 people the federal gov-
ernment 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 dif-
ferent from other terms, except that in three
of these opinions since November, Kagan
was at her side, and Breyer sat it out. It’s any-
one’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 some-
thing like this: Majority opinions were
written by the moderate white guys (Ken-
nedy 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 argu-
ment, asking why it was that a post-
miscarriage procedure could happen in
doctor’s offices when almost the exactsame procedure was being forced into
mini-hospitals when it was an abortion.
Eight days before the Biden inaugura-
tion, Sotomayor had the chance to put her
abortion views into the written record via
the shadow docket. Once again, the proce-
dure 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 preg-
nancy. Roberts wrote a concurring opin-
ion; 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 power-
ful opioids without leaving home,” she
observed acidly, “yet still requires women to
travel to a doctor’s office to pick up mifepris-
tone, 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. Presi-
dent,” 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 His-
panic 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 transpor-
tation to get to a clinic to pick up their medi-
cation. 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 real-
ize their full potential ... is intimately con-
nected to their ability to control their repro-
ductive lives.” The meaning was clear. Long
a dissenting force in her own right, Soto-
mayor would now hope to speak on behalf
of her deceased colleague. But she would do
it in her own voice. ■