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Chapter 2

Justice of Hearts

Justice Sonia Sotomayor

Dissenting, Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary

On December 31, 2013, Sonia Sotomayor stood in Times Square and pressed a button to lower the famous ball, signifying to as many as one million revelers that the New Year had arrived. The entertainment card that night included rock stars Blondie and Melissa Etheridge, rapper Macklemore, and the scandalous twerking rocker Miley Cyrus. But Sotomayor was the headliner.

It’s hard to imagine a bigger hometown honor for a girl from the Bronx than the Manhattan ball drop—but if there is one, Sotomayor has probably had it. Since 2010, this “Nuyorican” had been named to the Supreme Court, published a best-selling memoir, made a triumphant tour of the island where her parents was born, and appeared on Sesame Street to adjudicate a dispute between Goldilocks and Baby Bear (the verdict from the bench: Goldilocks should fix the chair).

On New Year’s Eve, Sotomayor also made headlines in her day job as a Supreme Court justice. She issued a temporary stay of a district court order requiring the Little Sisters of the Poor, an order of Catholic nuns, to provide government forms requesting exemption from the Affordable Care Act’s contraception-coverage requirements. The Tenth Circuit had refused to stay the order; under Sotomayor’s order, the nuns could refrain from filing until the issue was resolved before the Supreme Court. The back-to-back episodes showed two sides of this unusual justice: on the one hand, a deadly serious judge attempting to apply the law carefully; on the other, a full-fledged celebrity reaching out to a broader public.

She would turn sixty in the waning days of OT13. In that time period, she had risen from a childhood of poverty, disease, and dysfunction to the pinnacle of academic and professional achievement. Born in New York to Puerto Rican parents, she had been diagnosed with diabetes at the age of seven. Her father’s hands shook when he tried to administer her insulin injections; he was an alcoholic and would die of drinking only two years later. Her mother had to be at her job as a practical nurse, so Sonia learned to inject herself.

After excelling in Catholic school, she graduated from Princeton and then Yale Law School. It was the dawn of the age of affirmative action, and Sonia was welcomed onto these elite campuses. She realized quickly that her background had not prepared her for life in the Ivy League. (Who, she wondered as an undergraduate, was this Jane Austen? And what was Alice in Wonderland?) She began a program of study on her own to give her the knowledge she did not have. Her determination paid off. She graduated summa cum laude and received the Pyne Prize, the university’s top undergraduate academic award. At Yale she was an editor of the Yale Law Journal.

A recruiter from a top law firm made it clear that he considered affirmative action students unworthy; she complained to the university’s career office, which forced the man to apologize. As an assistant Manhattan district attorney, she caught the eye of legendary DA Robert Morgenthau and Senator Daniel Patrick Moynihan. Moynihan told the George H. W. Bush White House that he would block their judicial nominations unless they gave one to his protégée; in 1991, Bush agreed to name her as a federal district judge. Seven years later, Bill Clinton named her to the Second Circuit. Republican senators fought the nomination bitterly because they recognized her potential to become the first Latina justice. She was confirmed in 1998, however, and in 2009, Barack Obama nominated her to the US Supreme Court.

Her way onto the court was not entirely smooth. Some advisers to the president urged him not to name Sotomayor, arguing that she lacked the academic brilliance of other potential nominees. “Bluntly put, she’s not nearly as smart as she thinks she is,” Harvard professor Laurence Tribe wrote to the president in 2009. (The letter was later leaked to the media, embarrassing both Tribe and Sotomayor.) After the resignation of David Souter, as Obama pondered whom to name, noted court commentator Jeffrey Rosen published an article entitled “The Case against Sotomayor,” in which he quoted anonymous New York lawyers and former Second Circuit clerks (for other judges). “The most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench,’ as one former Second Circuit clerk for another judge put it,” Rosen wrote. “‘She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.’” Undeterred, Obama seized the chance to make history. On May 26, 2009, he nominated her in a White House event.

Republicans fought her confirmation in explicitly racial terms. During an academic event in 2001, Sotomayor had said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Before the hearings, Sotomayor said the comment was “a failed rhetorical flourish that fell flat.” Republicans claimed it showed racial bias against whites. They also criticized her work with the Puerto Rican Legal Defense and Education Fund and a decision she had made on the Second Circuit upholding a city government’s decision to discard the results of a promotion test that would have produced an all-white pool. (The case was criticized even by her Puerto Rican mentor, Second Circuit Judge Jose Cabranes, and later overturned by the Supreme Court.) But in the end, these qualms could not overcome the power of her life story, and the Senate confirmed the first Latina justice on August 6, 2009.

On the bench, Sotomayor soon eclipsed even Scalia as the court’s most aggressive questioner. On some occasions, the chief justice or other justices would ask her to be quiet and allow a lawyer to respond. In her opinions, she was moderate to liberal, with some skepticism of local law enforcement; her opinions were somewhat long-winded and technical. She seemed on her way to establishing herself as a “judge’s judge,” a devotee of the inside language of jurisdiction and precedent. Off the bench, she embraced becoming a wider role model, particularly for young Latina women. Her memoir, My Beloved World, appeared in early 2013 and became a best seller. It is a vivid portrait of the impoverished but vital family and neighborhood that nourished her and of the struggles that took her to the bench. Its sales made her, for the first time in her life, moderately well-to-do. (She is by far the poorest justice.)

But there was one more distinction, which she earned five months later. Until April 22, 2014, Sotomayor had not read a dissent from the bench in the Supreme Court chamber. In her first four years on the bench, she had authored twenty-one dissents. In March 2014 she had even told former New York Times Supreme Court correspondent Linda Greenhouse that she didn’t think much of dissents from the bench. “Announcing it from the bench,” she said to Greenhouse in a public conversation at Yale Law School, “is like entertainment for the press.”

Less than a month later, she reversed course in a case she clearly felt deeply about. No opinion she had written to date would gain more attention than the one she read in a case called Schuette v. Coalition to Preserve and Defend Affirmative Action.

Schuette arose out of the ongoing bitter battle against race-conscious affirmative action in college and university admissions. Many people believe that any use of race in the admissions process—even to open up institutions that were, until a generation or two ago, all white—disadvantages white people (and some other groups, like Asian Americans), stigmatizes nonwhites who “benefit” from it, and violates the equal protection clause of the Fourteenth Amendment.