• Mon. Sep 25th, 2023


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Sotomayor Says Supreme Court Can ‘Regain the Public’s Confidence’

WASHINGTON — Justice Sonia Sotomayor urged an audience of progressive lawyers on Thursday not to give up on the Supreme Court.

“We have to have continuing faith in the court system and our system of government,” she said, adding that she hoped “to regain the public’s confidence that we — as a court, as an institution — have not lost our way.”

Justice Sotomayor spoke as the court entered the homestretch of a tumultuous term. In the coming weeks, it will issue momentous decisions on abortion, gun rights, climate change and religion, and there is good reason to think she will find herself in dissent in most or all of them.

Justice Sotomayor, speaking at the annual convention of the American Constitution Society in a Washington hotel, did not address recent controversies at the court, including the leak of a draft opinion that would overrule Roe v. Wade or the disclosures that Virginia Thomas, the wife of Justice Clarence Thomas, had been a vigorous participant in efforts to overturn the 2020 presidential election.

Justice Sotomayor singled out Justice Thomas for praise. “He is a man who cares deeply about the court as an institution,” she said, adding that he is a beloved figure there.

“Justice Thomas is the one justice in the building that literally knows every employee’s name,” she said.

Justice Sotomayor said her interactions with Justice Thomas have been instructive. “I suspect I have probably disagreed with him more than with any other justice,” she said.

“He has a different vision than I do about how to help people and about their responsibilities to help themselves,” she said. “Justice Thomas believes that every person can pull themselves up by their bootstraps. I believe that some people can’t get to their bootstraps without help.

“That’s a very different philosophy of life, but I think we share a common understanding about people and kindness towards them,” she said. “That’s why I can be friends with him and still continue our daily battle over our difference of opinions in cases.”

More generally, she said, she and her colleagues had mastered the art “of disagreeing agreeably.” She attributed such civility to the legacy of Justice Sandra Day O’Connor, who organized frequent group lunches and movie nights before her retirement in 2006.

“There is a sense of collegiality, a sense of cooperativeness, that women tend to insist upon,” Justice Sotomayor said.

In their public appearances and statements, justices usually say that they are a collegial group.

In a joint statement in January, for instance, Justices Sotomayor and Neil M. Gorsuch sought to rebut reports that Justice Gorsuch’s decision not to wear a mask during Supreme Court arguments as the Omicron variant was surging had created tensions between them.

“Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us,” the statement said. “It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”

The leak of the draft opinion on Roe v. Wade, the 1973 decision that established a constitutional right to abortion, has tested such assertions of comity and good will.

In remarks in Dallas last month, Justice Clarence Thomas said the leak was “like kind of an infidelity,” damaging trust at the court.

“What happened at the court is tremendously bad,” Justice Thomas said. “I wonder how long we’re going to have these institutions at the rate we’re undermining them.”

He drew a contrast with the era in which the court’s membership did not change for 11 years until the arrival of Chief Justice John G. Roberts Jr. in 2005.

“This is not the court of that era,” Justice Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”

Many justices have joined the court since 2005, and only Justices Thomas and Stephen G. Breyer, who is about to retire, are still on it.

The court has lately been dominated by six Republican appointees, following President Donald J. Trump’s appointment of Justice Amy Coney Barrett in 2020 after the death of Justice Ruth Bader Ginsburg.

Last week, dissenting from a decision that made it harder to sue federal officials for constitutional violations, Justice Sotomayor made an unusual general observation about the impact of the recent changes in the court’s membership.

“A restless and newly constituted court,” she wrote, saw fit to tighten the relevant legal standards again just five years after narrowing them.

On Thursday, responding to questions from Tiffany Wright, a former law clerk, Justice Sotomayor said she had no choice but to keep pressing for her understanding of the Constitution.

“There are days I get discouraged,” she said. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments when I’ve stopped and said, ‘Is this worth it anymore?’ And every time when I do that, I lick my wounds for a while, sometimes I cry, and then I say, ‘OK, let’s fight.’”