Reviews | Supreme Court liberals reflect on years of minority

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Being a liberal justice on the Supreme Court with a conservative supermajority is a daunting, if not overwhelming, task. In the most important cases, you are doomed to almost certain loss. Victory only occurs, if at all, along doctrinal edges; to win is to avoid a greater evil.

So how do you keep up with this? How do you convince the public – more important and perhaps more difficult, how do you convince yourself – that the institution in which you serve for life deserves legitimacy and respect, even as it continues to guide the law in directions with which you strongly disagree?

On the cusp of what could be a cataclysmic moment in the Court’s history, with conservative justices seemingly poised to scrap constitutional abortion protections, expand gun rights and tear down the separation wall between church and state, Judge Sonia Sotomayor offered a revealing — if not entirely compelling — insight into how she handles this emotional and intellectual feat.

“Look, there are days when I get discouraged,” Sotomayor acknowledged during an appearance at the liberal American Constitution Society. “There are times when I’m deeply, deeply disappointed. And yes, there have been times when I’ve stopped and said, ‘Is it still worth it?’ And every time I do that, I lick my wounds for a while. Sometimes I cry. And then I say, okay – let’s fight.

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Former Sotomayor paralegal Tiffany Wright conducted the interview – and posed the tough question directly to the justice, citing polls showing declining public confidence in the court: “Why should the public continue to have confidence in its governmental institutions, including the Supreme Court? ”

The answer was perhaps as much Sotomayor convincing himself as rallying his audience, and his timeline was eerily telling. His response dated back to Dred Scott vs. Sandford, the reviled 1857 case in which the court ruled that blacks “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 almost another century, until the court’s decision on school desegregation, Brown v. Board of Education, for the damage to be repaired.

“Dred Scott lost his 11-year battle for freedom in court. … Yet he won the war,” Sotomayor observed, referring to Brown. “And that’s why I think we have to continue to have faith in the justice system, in our system of government, in our ability… to earn back the public trust that we, as a court, as an institution, we haven’t lost our way. …I truly believe in magic words, the arc of the universe bends toward justice. And I can’t go on unless I keep believing it.

Wow. It’s a long arc. But how else to continue?

It is fascinating to compare this determined and long-term committed Sotomayor with some of the exasperated and unrestrained Sotomayor she has displayed in recent years, with three new conservative justices joining the court. Of course, the two can co-exist – perhaps, for sanity reasons, they need to.

But consider Sotomayor’s profession of “continuing faith in the justice system,” and her ruthless question, during last December’s closing arguments in the Mississippi abortion case, about the impact of the court overturning its precedents because new judges had arrived: “Will this institution survive the stench that that creates in the public perception that the Constitution and its reading are only political acts? I don’t see how it’s possible. »

Consider her scathing dissent in September over what she called the court’s “staggering” refusal to block the passage of Texas abortion law: Judicial review, a majority of justices chose to hide your head in the sand.

Note his acerbic observation, in a case decided on June 8, about how “a restless and newly constituted Court” was – without any further justification – reducing an already neutralized precedent, this time on the ability of individuals to sue representatives of the government for violating their Constitutional rights.

Restless and newly constituted indeed. This is the reality that Sotomayor and his fellow liberals, Justices Elena Kagan, Stephen G. Breyer and, soon, in place of Breyer, Justice Ketanji Brown Jackson, know they will face, for years to come. . Sending to a semi-permanent minority isn’t what they (aside from Jackson) signed up for, but that’s 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 tribunal is not going to be remodeled any time soon. The next few weeks will show just how “hectic” it is. But we already had good reason to worry – even before Sotomayor chose to deploy that unsettling adjective.

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