Breaking In: The Rise of Sonia Sotomayor (26 page)

As the lawyer tried to answer, she repeatedly interrupted, saying such things as “When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you’re going to deliver care that is going to be adequate?” Justice Scalia, more sympathetic to the state’s dilemma than to the prisoners’ condition, interrupted and added in a somewhat mocking tone, “But don’t be rhetorical!”

In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom.

Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”
15

Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.
16

Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court. The query naturally came up because of how Sotomayor stood out. Yet in these tradition-bound environs, where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer.

It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were.

The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.

As Justice Sotomayor neared her five-year mark on the Court, she joked about her reputation for interruptions and said she was trying not to break in so much. It was a hard pattern to stop. Breaking in is what she did.

*   *   *

Sotomayor began her life as a justice at a momentous time. Her early terms brought unprecedented disputes over President Obama’s health-care initiative, immigration policy, affirmative action, voting rights, and same-sex marriage.

Her first term was an especially grueling one for all the justices. During most of the 2009–10 session she and her colleagues watched Justice Ginsburg fight off exhaustion as she accompanied her husband to numerous physicians for cancer treatment and other health problems. He died the last week of the term. It had also been a difficult session for the ninety-year-old John Paul Stevens, the third-longest-serving justice in history. He decided to retire after concluding that age was getting the best of him. In January 2010 he had faltered and stuttered repeatedly as he read from the bench portions of a lengthy dissenting opinion in a major campaign finance case.
17

All the justices were feeling the strain of ideological divisions exposed in that case—
Citizens United v. Federal Election Commission
. The five-justice conservative majority, which was seizing control in many areas of the law, had rolled back decades of precedent to strike down limits on corporate and labor union spending in elections.
18
Just days after the decision, President Obama, in a rare and highly public rebuke, denounced the ruling in his nationally televised State of the Union speech before Congress. Six justices—three who happened to be from the
Citizens United
majority and three from the dissenting side—were in the front rows in the U.S. House of Representatives as the president condemned the decision. Justice Samuel Alito, who had voted with the majority against the campaign finance regulation, mouthed the words “Not true” as Obama predicted that the decision would “open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”
19
It was a twenty-second moment that went viral and exemplified the tensions between the executive and judicial branches at the time.
20

During Sotomayor’s first term, the same five-justice conservative bloc that had written
Citizens United
—Chief Justice Roberts, Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—joined in a ruling that enhanced the right to own firearms. Again over protests from the four liberals, including Sotomayor, the Court said that gun owners could challenge state and city regulations that restricted gun possession. The majority declared that the Second Amendment right to bear arms was fundamental to American liberty and thus protected against local restrictions as well as federal regulation. Four Chicago homeowners had challenged a city law that banned handguns, saying they needed the guns for their personal safety in dangerous neighborhoods. The Court’s decision striking down the ban flowed from its 2008 ruling in
District of Columbia v. Heller
, which established the right to keep and bear arms under federal law.

Sotomayor’s dissenting vote in the new case of
McDonald v. City of Chicago
added to the evidence in her first term that she would be a reliable liberal vote. It also provoked critics who thought that her statements during Senate confirmation hearings should have led to an opposite conclusion. During that testimony in the summer of 2009 she had expressed support for the Supreme Court’s ruling in
Heller
. She testified that she understood “the individual right fully that the Supreme Court recognized in
Heller
 … I understand how important the right to bear arms is to many, many Americans.”
21

In that new case from Chicago, as she signed on to a dissent protesting the majority’s view that the right to keep and bear arms is fundamental to liberty, Justice Sotomayor felt no need to write a separate opinion to provide an explanation. In her earliest terms she rarely broke off—beyond criminal procedure matters—to offer a concurring statement about her position, even in cases in which she was more naturally in the spotlight, such as on affirmative action and immigration.

Some of her moves were subtle. She brought a nuanced sensitivity to immigrant rights in her first signed opinion. The case involved a shift supervisor at a manufacturing plant who was fired after telling the human resources department that the company was hiring illegal workers, or, as Sotomayor wrote, “undocumented immigrants.”
22
She later said that she had called the workers in question “undocumented immigrants” because calling “them illegal aliens seemed … insulting.”
23

Sotomayor’s first major immigration case tested an Arizona law that, among its provisions, required police to check the immigration status of people stopped for routine offenses and to detain those who did not have proper documentation. Civil rights groups said that the requirement, signed into law by Republican governor Jan Brewer in April 2010, could lead to racial profiling and prolonged detentions. Hispanic advocacy groups, including the Mexican American Legal Defense and Educational Fund, vigorously protested it. More than half of the nation’s estimated 11.5 million illegal immigrants were from Mexico. Critics of the law said that even people in the United States legally could be targeted because of their skin color and national origin. When the dispute came before the justices, however, it was not a constitutional dispute over racial profiling, but rather a test of state authority to enforce federal immigration law. The Obama administration was challenging all facets of the Arizona law, known as SB 1070, arguing that Congress, not individual states, should control immigration policy.
24

As the Supreme Court hearing opened, Sotomayor was first in, firing a series of questions at Washington lawyer Paul Clement, a former U.S. solicitor general under President George W. Bush who was representing Arizona officials in their defense of the law. Sotomayor expressed concern that people stopped might end up in jail for long periods while local officers tried to check their immigration status. “What I see as critical is the issue of how long and … when is the officer going to exercise discretion to release the person,” she said.
25

Sotomayor was equally skeptical with U.S. solicitor general Donald Verrilli, attacking the “show me your papers” provision as being in conflict with federal immigration policy. “You can see it’s not selling very well,” she told him. At another point she said, “General, I’m terribly confused by your answer. Okay?” She challenged the reliability of federal databases that police officers might use to determine whether someone stopped locally is in the United States legally.

In the end, Sotomayor joined an opinion that upheld the provision allowing police officers to check the legal status of people they stop for other violations of the law yet struck down the bulk of SB 1070’s disputed provisions. She and her colleagues viewed the stop-and-check section as reinforcing, rather than usurping, federal policy. Writing for a five-justice bloc that included Sotomayor, Justice Kennedy narrowly interpreted the provision’s reach. He warned authorities not to use the law to delay the release of people or to target minor offenders—for example, jaywalkers who cannot produce identification. The modest scope and tone of Kennedy’s opinion probably helped draw Sotomayor and the two other liberals, Ginsburg and Breyer. Chief Justice Roberts also joined the Kennedy opinion.

A majority, with Sotomayor, further declared that federal law preempted other provisions, including those that made it a state crime to be unlawfully present in the United States or to seek work without proper documentation. The justices highlighted the federal government’s role in immigration and largely rejected the effort by Arizona and other states to institute their own sweeping measures to stop people from illegally crossing the border. Civil rights advocates and President Obama focused on the part of the decision that did not go their way. “No American should ever live under a cloud of suspicion just because of what they look like,” Obama said in a statement.

If she were addressing a social policy matter rather than an issue of law, Sotomayor might have expressed similar sentiment. She did, in fact, tell students in Denver about crossing the border once with a dark-skinned Mexican American friend who was asked to get out of the car. Sotomayor believed the action might have stemmed from racial profiling. But as a jurist, she did not feel it was her place to elaborate on such views in a case.
26

Nearly a generation behind the Court’s most famous groundbreakers, Sotomayor did not see herself as an advocate for a cause. She did not come up through the ranks of Hispanic groups as a visible activist for her people, as Ruth Bader Ginsburg had done with women’s rights. Sotomayor was not the leader who helped start the Puerto Rican Legal Defense Fund, as Thurgood Marshall had with the NAACP Legal Defense Fund. Marshall and Ginsburg accentuated broader group rights in their public writings and speeches rather than their personal experiences.

In the justices’ private conferences, Marshall often regaled his colleagues with experiences he gathered in service to a cause. He knew firsthand Klan violence, jury bias, and judges who had been bought off. He told of seeing “whites only” signs on restrooms and at drinking fountains as he traveled the South and of being warned to get out of town “cuz niggers ain’t welcome in these parts after dark.” That perspective prompted Justice O’Connor to write after Marshall retired, “His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them … His was the mouth of a man who knew the anguish of the silenced and gave them a voice.”
27

Asked about the role Marshall played with his colleagues, Sotomayor said, “I am not a storyteller. I am not a flamethrower. That’s not who Sonia ever was. If you look at my life, it’s not that I don’t support those legal issues or principles. It’s not that the passion isn’t there. It’s that it’s always done in a lawyerly, judicial way. That’s who Sonia is. And it’s effective.”

*   *   *

Sotomayor’s early opinions were narrowly crafted, as they had been on the Second Circuit. Most distinctive, in a substantive vein, was her support for the rights of defendants and her concern for criminal law procedures. Sometimes her liberal colleagues would be with her, but often she was alone. “What I view as driving my jurisprudence is process,” she said, telling audiences she wanted to ensure that people were given a fair chance within the legal system.
28

In her first term she was joined by fellow liberals when she wrote the lead dissent to a 2010 majority ruling that sided with police when suspects had not clearly invoked or waived their Miranda right to remain silent during interrogations. The case tested the circumstances of questions put to a murder suspect in Michigan, Van Chester Thompkins, who had stayed silent but did not affirmatively say he did not want to talk to police. Near the end of a three-hour interrogation, when asked if he prayed to God to forgive him for the shooting, he said, “Yes.” The trial judge refused to suppress the evidence during the trial, and Thompkins was convicted of murder. The Supreme Court majority upheld use of the statement at trial.
29

Sotomayor, writing the first major dissent of her Supreme Court tenure, charged the majority with retreating from precedent that stood for the proposition that prosecutors have the burden of showing that a suspect had waived his rights. “Today’s decision turns
Miranda
upside down,” she said. “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
30