This was no spur-of-the-moment comment. Stench was a word deliberately chosen, calibrated to the perceived danger of the moment, studiously oblivious to whether it would antagonize colleagues. It was the equivalent of shouting, “Fire!” in an uncrowded courtroom, not so much to those present but to a live-streaming nation.
And stench was just the start of what Sotomayor had to say. “How is your interest anything but a religious view?” she demanded of Mississippi Solicitor General Scott Stewart. “I just think you’re dissimulating when you say that any ruling here wouldn’t have an effect on those,” she told Stewart when he asserted that overruling Roe would not imperil other court decisions on same-sex marriage, sexual privacy or contraceptive access.
“What are the advancements in medicine” that could justify abandoning Roe v. Wade, she pressed — and proceeded to lecture that there have been none that are scientifically valid. “So when does the life of a woman and putting her at risk enter the calculus?” she asked, reeling off statistics on the far greater risk to women, especially poor women, in giving birth than in terminating a pregnancy.
The argument captured the unusual, public-facing role that Sotomayor, now in her 13th year on the bench, has staked out for herself on this conservative court.
Justice Stephen G. Breyer, the senior liberal on the court, is the dogged — doggedly naive, some would say — defender of the institution against charges of politicization and partisanship. Justice Elena Kagan is the inside player adept at crafting whatever small compromise remains to be had — but is, increasingly, forced to resort to scorching dissents.
At Wednesday’s argument, Kagan was uncharacteristically subdued, as if she knew there wasn’t much to be gained in scoring points during oral argument. But if there is an inside damage-control game to be played in Dobbs v. Jackson Women’s Health, in which the majority seems certain to uphold Mississippi’s prohibition on abortion after 15 weeks, it is difficult to discern.
Sotomayor is less inclined to horse-trading than truth-telling. The death of Justice Ruth Bader Ginsburg last year left her as the court’s loudest liberal voice. And she isn’t mincing words or playing nice, not any more.
When Chief Justice John G. Roberts Jr. interrupted her line of questioning Wednesday, Sotomayor inquired coolly: “May I finish my inquiry?” This was no accident. When she is interrupted at oral argument, as studies have shown happens more frequently to female justices, Sotomayor has observed, “I respond in a way that perhaps I shouldn’t, which is I interrupt back.”
And when the court, in her view, errs, she slaps back, often with savage honesty and a real-world perspective not often demonstrated in the arid confines of judicial opinions. In 2016, when the court allowed the use of evidence obtained from an unconstitutional police stop, Sotomayor’s dissent took pains to describe the impact on “those subjected to the humiliations” of being stopped without any basis for suspicion.
“For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them,” she wrote, quoting W.E.B. Du Bois, James Baldwin and Ta-Nehisi Coates.
In the 2020-2021 term, she was the justice least often in the majority (69 percent, and in just 45 percent of its non-unanimous cases). She issued nine written dissents, more than any other justice, in cases ranging from donor disclosure requirements to juveniles sentenced to life without parole. “The court is fooling no one,” she wrote in that case, as it “guts” its precedents.
Even that understates Sotomayor’s role. More frequently than her colleagues, she is prone to dissent publicly when the court chooses not to hear a case, often on issues of whether criminal defendants have been treated fairly or whether police officers were improperly granted qualified immunity for their actions.
And as the court’s use of its emergency “shadow docket” has grown, Sotomayor has called out her colleagues for abusing the process. In January, she decried the court’s enabling of an “expedited spree of executions” sought by the Trump administration in its final months. In September, as conservatives declined to prevent the Texas abortion law from taking effect, four justices (the three liberals plus Roberts) dissented, but Sotomayor was by far the most full-throated. “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” she wrote. “I dissent.”
The customary adverb — “respectfully” — was notably absent. It wasn’t the first time that Sotomayor has dropped it, and Wednesday’s argument suggests it will not be the last.