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Sotomayor Takes Lead as Dissenter for Embattled Liberal Justices

July 5, 2022, 10:45 AM

US Supreme Court Justice Sonia Sotomayor is now positioned to be the lead dissenter on a liberal wing that’s powerless to stop the court’s conservative majority from pushing federal law to the right.

She’s already the most prolific dissenter. Sotomayor joined the majority 57% of the time this term, compared to 75% in the previous one. Justice Stephen Breyer’s retirement means the first Latina justice who joined the court in 2009 is now the liberal bloc’s most senior member with the power to assign dissenting opinions when the court splits along ideological lines, which it did in 13 cases this term.

“I view Justice Sotomayor as playing an incredibly important and probably increasingly important role on the court,” said Lisa Eskow, co-director of the Supreme Court Clinic at the University of Texas School of Law.

Sotomayor, 68, has taken her own approach to the role of lead dissenter previously held by the late Justice Ruth Bader Ginsburg, legal scholars say. She aims to speak directly to the public and address concerns about the court’s institutional legitimacy, whether in written opinions or during oral arguments and her many speaking engagements.

“She’s made very clear that she is committed to being the voice of reason, to being a truth teller,” Eskow said.

Plainspoken style

Sotomayor hasn’t minced words this term. She accused the court of “giving short shrift” to the Constitution’s ban on the state establishment of religion when the majority sided with a high school football coach who lost his job for holding post-game prayers.

“In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance,” she said.

During oral arguments in the case challenging abortion rights, she bluntly asked whether the court will “survive the stench” that overturning Roe v. Wade “creates in the public perception that the Constitution and its reading are just political acts.” And when the court allowed Texas’ six-week abortion ban to take effect last September, Sotomayor said the majority had “silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.”

“She certainly, for those who don’t like the direction the court is going, would be assuming that mantle of being the primary voice of dissent,” said Jonathan Adler, a Case Western Reserve University School of Law professor.

In orders on June 30, Sotomayor penned dissents in six cases the court either refused to hear next term or refused to grant, vacate, and remand a case, known as GVR, in light of its prior rulings. She accused the court of “quietly constricting” its use of GVR orders in a criminal case in which both the criminal defendant and the government had asked to correct an unlawfully long prison sentence.

“Nothing in precedent or history supports such a cramped conception of the Court’s GVR practice,” which she said forces people like the defendant “to bear the brutal cost of others’ errors and denies them the benefit of a readily available, and potentially life-altering, procedural mechanism to correct those errors.”

Sotomayor, appointed by Barack Obama, has a plainspoken writing style that her former clerks say is meant to make the court’s decisions and their impact easy to understand.

“If I wrote something and added a rhetorical flourish, she would often take it out and say, ‘Does this help the understanding?’” said Melissa Murray, a New York University School of Law professor, who clerked for Sotomayor on the U.S. Court of Appeals for the Second Circuit from 2003-04.

“She’s not a grandstander,” Murray said. “She wants people to understand what happened, understand that they were heard or not heard given what we’ve seen over the last couple of days.”

In one week, the court’s 6-3 conservative majority overturned the constitutional right to abortion, expanded the Second Amendment to allow guns to be carried outside the home for self defense, and limited the EPA’s ability to curb climate change.

Some legal scholars argue it’s Justice Elena Kagan who will be viewed by history as the current court’s greatest dissenter, though she was relatively quiet this term aside from her dissent in the EPA case.

“Kagan has a Scalia-like pen,” Eric Segall, a Georgia State University College of Law professor, said referring to the late Justice Antonin Scalia. “She’s not as mean as Scalia, but she has that ability to say so much in a few decisive sentences.”

Power of dissent

Kagan and Sotomayor are about to get a new voice joining them in dissent. Associate Justice Ketanji Brown Jackson was sworn in June 30 to replace Breyer. Jackson, the first Black woman justice, is expected to be a reliably liberal vote. But it may take time for her voice to emerge.

“We shouldn’t expect too much right off the bat,” Adler said. “It’s traditional in the first year for justices to be a little less outspoken.”

Dissenting opinions provide more than Twitter fodder for those on the losing side of an issue, legal scholars say. Dissents also point out holes in the law, identify steps Congress can take, and raise analytical inconsistencies, gaps in logic, and disingenuous statements in the majority opinion, Eskow said.

The public’s confidence in the court is at a historic low and yet Sotomayor still seems optimistic that will change.

At the progressive American Constitution Society’s annual convention in June ahead of the court’s blockbuster end-of-term rulings, she made the case that the court hadn’t lost its way and will eventually “regain the public’s confidence.”

Legal scholars say Sotomayor is mindful that people are watching what the court is doing and wants them to know she’s working to address their concerns.

“Is she a great dissenter? That’s for history to decide,” Murray said. “Is she the people’s justice? Undoubtedly.”

—With assistance from Kimberly Strawbridge Robinson.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com