As the Supreme Court prepares for the end of the most tumultuous term in decades, and the justices race to issue opinions on highly divisive issues, Justice Sonia Sotomayor appeared before a liberal audience in Washington on Thursday and discussed her relationship with her ideological opposite: Justice Clarence Thomas.
“I have probably disagreed with him more than any other justice,” Sotomayor said of the conservative justice. But, she said, the two maintain a friendship, in part because he is a “man who cares deeply about the court as an institution – about the people who work here.”
“He has a very different vision than I do about how to help people … and about their responsibilities to help themselves,” Sotomayor said at an event hosted by the American Constitution Society. “I have often said to people that 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 – they need someone to help them lift their foot up so that they can reach.”
But she added that the two share a “common understanding about people and kindness.”
“That’s why I can be friends with him and still continue our daily battle over our differences of opinions in cases,” she said. “You really can’t begin to understand an adversary unless you step away from looking at their views as motivated in bad faith.”
Sotomayor’s comments came as the House committee investigating the January 6, 2021, attack on the US Capitol announced that it plans to invite Virginia “Ginni” Thomas, Thomas’ wife, for an interview in order to better understand her role in the effort to overturn the 2020 electoral results. Justice Thomas himself has been criticized for failing to recuse himself from cases related to former President Donald Trump and the attack.
Sotomayor did not mention that controversy, nor did she talk about the leak this spring of a draft opinion striking down Roe v. Wade or protests that have erupted in front of the court as well as at some justices’ homes after the leak.
She also dodged explicit references to the remaining cases on issues like abortion, gun rights, immigration, religious liberty and the environment that will likely appear over the next two weeks.
But she did engage with a young progressive lawyer who asked her – in general terms – about losing hope during a fraught time in the country.
“There are days I get discouraged, there are moments when I am deeply, deeply disappointed,” Sotomayor admitted. But she said she licks her wounds, “sometimes I cry,” and “then I say, ‘OK, let’s fight.’”
Sotomayor responded to questions from the audience and her former clerk, Tiffany Wright, who now serves as an associate counsel in the Office of White House Counsel.
Roe and other controversies
If the court’s final opinion in that case does indeed overturn the landmark decision legalizing abortion nationwide prior to viability, Sotomayor is not likely to be silent. Already, at oral arguments she suggested that the only reason the court was reconsidering Roe now, after some 50 years, is because its membership has recently changed.
“Will this institution survive the stench that his creates in the public perception that the Constitution and its reading are just political acts?” she asked.
There have been some disputes this term where Sotomayor joined forces with one of her conservative colleagues. For instance, she joined a dissent written by her conservative colleague and bench-mate, Justice Neil Gorsuch, in March when the majority agreed to shield the testimony of two former government contractors from a terrorism suspect.
But in the cases that most capture the public’s attention, she will likely make her position known. Evidence of tension between some of the justices has seeped into opinions and even speeches.
Thomas, for instance, last month gave an unusual talk where he seemed to criticize Chief Justice John Roberts. Recalling the Court’s atmosphere before Roberts joined, Thomas said, “We actually trusted each other. We may have been a dysfunctional family, but we were a family, and we loved it,” he said.
As the term began last fall, Sotomayor foreshadowed heated dissents.
“There is going to be a lot of disappointment in the law, a huge amount,” she told a group of law students at an event hosted by the American Bar Association. “Look at me, look at my dissents,” she said.
When the court allowed Texas’ six-week abortion ban to go into effect, her anger was palpable. “The court,” she said, “betrays not only the citizens of Texas, but also our constitutional system of government.”
In January, when the court once again ruled against abortion providers in the state, Sotomayor went even further.
“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote in a scathing dissent joined by Justices Stephen Breyer and Elena Kagan. “I will not stand by silently as a State continues to nullify this constitutional guarantee.”
And earlier this month in a dispute that cut back on the ability of individuals to sue law enforcement officers who violate their constitutional rights, Sotomayor, in dissent, once again referenced the speed in which the court was overturning precedent and setting new standards, referring to it as a “restless and newly constituted Court.”
