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Is Sotomayor 'Finding Her Voice' or Alienating Her Colleagues?

By William Peacock, Esq. | Last updated on

We've noted a possible rift between Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor before. The two justices, who both fall on the left end of the ideological spectrum, have, in the past, traded barbs in footnotes over Sotomayor's interpretation of past cases and the trial record. Justice Alito has also called her out in the past.

Then, in fifty-eight pages of dissent, parts of which were read aloud while the other justices cringed, she poked a few more justices, two of whom responded in their opinions in Schuette. The New York Times says that after nearly five years on the Court, she's finally found her voice, but that voice already seems to be grating on her colleagues.

Sotomayor's Dissent

As the Times piece recounts, Sotomayor's dissent was fifty-eight pages of history, legal analysis, policy arguments, and personal reflections on growing up Puerto Rican in New York City. The National Review called it "legally illiterate," which is a hilarious term we're going to keep in our back pocket, right next to "benchslap."

Most important, however, was her showdown with Chief Justice Roberts. She called his views "out of touch with reality." She also drew the ire of Justice Antonin Scalia by comparing Michigan's ban on Affirmative Action to Jim Crow laws.

Roberts Strikes Back

Don't poke CJR. The Chief wrote a separate page and a half concurrence addressing Sotomayor's dissent, first questioning her reasoning, then calling her out for making a legal disagreement personal.

Sotomayor's dissent argued that "[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'"

Roberts asked, "But it is not 'out of touch with reality' to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and--if so--that the preferences do more harm than good."

"To disagree with the dissent's views on the costs and benefits of racial preferences is not to 'wish away, rather than confront' racial inequality," he wrote. "People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate."

Scalia Footnotes Sotomayor

Though he didn't address Sotomayor directly in his opinion, he does reference her dissent twice in footnotes. In FN4, he calls her version of the political-process doctrine test "scattershot," which was more a commentary on the test itself than Sotomayor. (His entire concurrence is a rant against the test, and the line of cases that birthed it.)

In his final footnote, however, he was far less soft-spoken, calling Sotomayor's comparison of "the majority" responsible for Michigan's ban (it was a referendum) with the "majority" responsible for Jim Crow "shameful."

Is This a Growing Rift?

Sotomayor's dissent was joined by only one justice, Justice Ginsburg, who has, in previous opinions, openly questioned Sotomayor's legal reasoning.

As she read her dissent aloud, the Times reports that "[s]everal of her colleagues seamed tense, impatient and grim as she spoke." In recent times, even judges who disagreed vehemently in opinions (see nearly every split case involving Scalia and Ginsburg) remained friends off the bench, but even those jabs (Ginsburg referring to Scalia's "bluster," for example) had a far more civil tone than the current back-and-forth between much of the Court and Sotomayor.

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