To be a liberal justice on a Supreme Court with a conservative supermajority is a daunting — even soul-crushing — task. In the cases that matter most, you are consigned to almost certain loss. Victory happens, if it occurs at all, only along the doctrinal edges; winning consists of avoiding greater harm.
So how do you keep going in the face of this? How do you convince the public — more important and perhaps more difficult, how do you convince yourself — that the institution on which you are serving for life deserves legitimacy and respect, even as it proceeds to take the law in directions with which you profoundly disagree?
On the cusp of what could be a cataclysmic moment in the history of the court, with the conservative justices seemingly poised to remove constitutional protection for abortion, expand gun rights, and lower the wall of separation between church and state, Justice Sonia Sotomayor offered a revealing — if not entirely convincing — glimpse into how she manages that emotional and intellectual feat.
“Look, there are days I get discouraged,” Sotomayor acknowledged in an appearance at the liberal American Constitution Society. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments where I’ve stopped and said, ‘Is this worth it anymore?’ And every time I do that, I lick my wounds for a while. Sometimes I cry. And then I say, okay — let’s fight.”
Sotomayor’s former law clerk Tiffany Wright conducted the interview — and put the hard question to the justice directly, citing polls showing declining public trust in the court: “Why should the public continue to have confidence in its institutions of government, including the Supreme Court?”
The answer was perhaps as much Sotomayor convincing herself as rallying her audience, and its timeline was grimly telling. Her answer stretched back to Dred Scott v. Sandford, the reviled 1857 case in which the court ruled that Black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” It took a civil war, three constitutional amendments and nearly another century until the court’s school desegregation ruling, Brown v. Board of Education, for the damage to be reversed.
“Dred Scott lost his 11-year battle for freedom in the courts. … Yet he won the war,” Sotomayor observed, referring to Brown. “And so that’s why I think we have to have continuing faith in the court system, in our system of government, in our ability … to regain the public’s confidence that we as a court, as an institution, have not lost our way. … I truly believe in the magical words, the arc of the universe bends toward justice. And I can’t keep going unless I continue to believe that.”
Wow. That is one long arc. But how else to keep going?
It is fascinating to contrast this Sotomayor, determined and dug in for the long haul, with some of the exasperated, no-holds-barred Sotomayor she has displayed in the past few years, with three new conservative justices joining the court. Of course, the two can coexist — maybe, for sanity’s sake, they need to.
But consider Sotomayor’s profession of “continuing faith in the court system,” and her unsparing question, during oral arguments last December in the Mississippi abortion case, about the impact of the court reversing its precedents because new justices had arrived: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Consider her scathing dissent, in September, from what she termed the court’s “stunning” refusal to block the Texas abortion law from taking effect: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Note her tart observation, in a case decided June 8, about how “a restless and newly constituted Court” was — without any other justification — cutting back on already neutered precedent, this time about individuals’ ability to sue government officials for violating their constitutional rights.
Restless and newly constituted indeed. This is the reality that Sotomayor and her liberal colleagues, Justices Elena Kagan, Stephen G. Breyer and, soon, in Breyer’s place, Justice Ketanji Brown Jackson, know they will confront, for years to come. Consignment to a semi-permanent minority is not what they (apart from Jackson) signed up for, but it is where they are. Their greatest influence will not be directly on the court itself, but on how the public perceives its actions, and the hope that, as Chief Justice Charles Evans Hughes put it, “the intelligence of a future day” will recognize the wisdom of their dissents.
Because this newly constituted court isn’t going to be reshaped anytime soon. The next few weeks will demonstrate just how “restless” it is. But we already had ample reason to worry — even before Sotomayor chose to deploy that unsettling adjective.