Justice Sotomayor on Justice Thomas

Just because justices disagree, does not mean they aren't fond of one another.

|The Volokh Conspiracy |

Justice Ruth Bader Ginsburg's close friendship with the late Justice Antonin Scalia is well known. Indeed, the Notorious RBG wrote the Foreword to Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, the recently published volume of her notoriously conservative colleague's speeches and lectures.

Was the Ginsburg-Scalia relationship an aberration? I would hope not.

In recent remarks at the Vanderbilt Law School, Justice Sonia Sotomayor commented on Justice Clarence Thomas. From the Tennessean coverage:

Speaking during a wide-ranging question-and-answer session at the law school, Sotomayor touched on a number of topics, from her debut as a judge — which made her knees knock with nerves — to her strong bond with fellow Justice Clarence Thomas, who often disagrees with her on the bench. . . .

Sotomayor repeatedly returned to the theme of empathy during her remarks.

"A lot of people start with derision as their first response" to a disagreement, she said.

But she suggested it's better to forge relationships built on common ground even if you disagree with someone. She singled out Thomas as the justice "with whom I probably disagree the most.

"Yet I can stand here and say that I just love the man — as a person."

Justice Sotomayor's comments and Justice Ginsburg's fondness for Justice Scalia should remind us that political disagreement need not poison personal relationships.

(Hat tip: How Appealing.)


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  1. She hates the other 7 because they’re white, so it only appears that she loves Thomas in relative terms.

    1. I am glad they get along, but I can’t help but wonder if she wants to ask him privately about the pubic hair and the Coke can and if it was true or not. I bet she longs too, but won’t bring herself too.

      1. Anita Hill’s story was so patently absurd it amazes me that anyone believes it.

        1. Yeah, the holes in her story are so profound that only the press could conceivably buy it.

          1. So this is what it is like when disaffected conservatives mutter bitterly and inconsequentially among themselves while America progresses against their wishes?

            I am grateful to the Volokh Conspiracy for providing this window into a world rarely observed by the liberal-libertarian mainstream.

            1. Rev. ALK, a disaffected liberal muttering bitterly about his inability to relate to people who aren’t completely obsessed with politics and hanging on desperately to his ideal world where everyone agrees with him even as it slips farther and farther away.

              Carry on, clinger.

            2. If you define giving marriage licenses and forcing bakers to make wedding cakes for two homosexual men as “progress…”

              1. The problem is not the definition of progress.

                Everyone agrees that same sex marriage is progress.

                The problem is you don’t want progress.

                You wish it was 1818 not 2018.

                1. The trains headed toward Auschwitz made ‘progress’ every inch they traveled. “Progress” like “reform”, is one of those words whose connotations are undeservedly favorable despite their denotations being neutral.

                  1. Brett, do you really think your comment is clever, or are you just clearing out a drawer of last year’s unused comments?

                    1. It was certainly truthful.

              2. If you define giving marriage licenses and forcing bakers to make wedding cakes for two homosexual men as “progress…”

                Treating people equally in the eyes of the law shouldn’t need to be called “progress”. And no one is asking bakers to do anything except to act as grownups and sell their services to everyone equally.

                1. Ordering the bakers to perform services for people when they don’t want to is the antithesis of treating them as grownups.

                  It might be nice for them to sell their services to everyone equally, but it ought to be their choice.

            3. the liberal-libertarian mainstream

              I’m not familiar with that neighborhood, libertarian philosophy being antithetical to both current liberal and conservative values.

        2. Well, she did pass a polygraph, while Thomas refused the risk of taking one himself. There were 4 or more women who were willing to testify that Thomas had acted sexually inappropriately with them, but some weird backroom deal was struck during the confirmation, so that their testimony would not occur. I think only a liar or a deluded idiot would say, “I know for sure that Thomas *did* act as Mrs. Hill said.” And only a liar or deluded idiot would say, “I know for sure that he did *not* act as Mrs. Hill said.” There is compelling evidence that he acted inappropriately. Was that enough to deny him a Supreme Court nomination? Here, reasonably people can differ.

          But it’s the confident certainty of people who have no earthly way of knowing what the true is or is not . . . that’s disappointing and distressing. Only two people know what happened for sure.

          1. um, ‘reasonable people’ that is.

            I hate the absence of an “edit” feature.
            (Of course, I also miss the ability to find all my prior posts to see if there have been any subsequent comments/responses. In my opinion, each new site results in a less-user-friendly experience, which is a shame.)

          2. Polygraphs do NOT detect lying nor the truth.

            Polygraphs read heart, sweat, and breathing rates.

            Anyone who thinks polygraphs find out if someone is lying, should look into the matter further.

            1. Agree that polygraphs are dumb and should just about never be used.

              That being said, santamonica811 noted only that Thomas wouldn’t take the risk, not that passing a polygraph means Hill was telling the truth.

              1. Agree that polygraphs are dumb and should just about never be used.

                That being said, santamonica811 noted only that Thomas wouldn’t take the risk, not that passing a polygraph means Hill was telling the truth.

                Come on. Santamonica didn’t only “note” that; he insinuated that it said something about the relative credibility of the two parties. Otherwise, why mention it? Nobody would say, “Hill went to an astrologer, while Thomas wouldn’t take that risk,” because it’s silly to bring up the topic given its worthlessness as a metric.

                1. The willingness to take the risk is the metric, not the polygraph’s result.

      2. In a world where a rapist and serial harasser and groper like Bill Clinton can be held up as hero to women, the whole pubic hair on a coke can thing seems so trivial that I’m surprised anyone can bring it up with a straight face, if indeed it ever happened.

        1. Well, to be fair, Bill Clinton as a *person* was never held up to be a hero to women. His policies, I acknowledge, were seen that way. So, Clinton qua president was seen as a hero, I guess. Mostly (in my opinion) because his presidency came right after many years of highly conservative Republican presidents, who were seen by many as being antithetical to women’s rights. So, that perspective helped burnish Clinton’s image as a friend (or, “hero,” if you insist) to women.

          I guess it’s to the Republican’s credit that they are not holding up a rapist, serial harasser and groper like Donald Trump as a hero to women. I damn with faint praise.

        2. Let it be known that “Kazinski” would not even care if someone else’s pubic hair turned up on something he is eating or drinking.

  2. Off topic, but is anyone going to do a post on the census litigation, and the suit by a number of states on the decision to ask census respondents whether they are citizens?

    1. I, for one, would love to see that post. I’m very interested in a legal analysis of that lawsuit.

    2. Given that question was, in one form or another, on every prior census questionaire except for 2010, they’re going to have a great effort claiming unconstitutionality. The question should be why it wasn’t on the 2010 questionaire.

      1. To be fair, it was only previously on a long form census questionnaire that not all households receive, and not on the standard one. But I don’t see how that would matter from a legal point of view, and otherwise you are correct.

      2. Beyond that, I think there is a more basic problem. No one has said that they are not going to count non-citizens or illegal aliens. They are just asking for information. If you look at the census form here:

        http://www.census.gov/dmd/www/pdf/d61a.pdf (for 2000 form)

        and here

        /www.census.gov/2010census/text/text-form.php (for 2010 form)

        it asks for all kinds of information — names of members of your household, their relation to each other, their race. sex and telephone number. None of that has to do with counting for Congressional seats. So merely asking who is a citizen does not mean they are not being counted. So where is the “discrimination?”

        As for intimidating aliens into not answering, that strikes me as outlandish. The form is pretty detailed and intrusive. I find it hard to believe that John Doe Alien is willing to answer all the detailed questions on the current form, but if you add to it, “are you a citizen” then suddenly they are scared off?

        1. The issue is the risk that this question will poison the well. There’s some good local data that it will.

          1. I don’t know what “poison the well” even means. The issue I saw raised is that it will scare off aliens from responding. Frankly, I find that far-fetched — if they are not scared off by the census in general, I don’t think that adds much.

            The current census asks for race, gender, names and family relations. If you are telling all that, then you are willing to reveal a lot about your family.

            1. We ask for race, even though we have an actual history of using census data on race to round people up and send them to camps. It’s hard to imagine how asking about citizenship can be any worse.

              1. Risk of government abuse != risk it will intimidate people not to fill out their census forms.

            2. Your speculation about how anxious immigrant (wtf alien?) families will act is noted.
              Census directors of both parties disagree. So do all the small-scale studies the Census has commissioned to probe the issue.

    3. If one congressional district has 700,000 citizens and another has 350,000 citizens and 350,000 non-voting illegal immigrants, don’t the voters in the latter district have twice the voting power, contrary to the one person one vote standard of Reynolds v. Sims?

      Also, what is the impact of Section 2 of the 14th Amendment on apportionment, which says that those denied the right to vote are not to be counted toward the population size for apportionment purposes?

      But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

      1. Also, what is the impact of Section 2 of the 14th Amendment on apportionment, which says that those denied the right to vote are not to be counted toward the population size for apportionment purposes?

        Maybe it doesn’t apply because by its terms it refers to “citizens of the Unites States” whose right to vote is abridged?

        1. This provision is effectively moot in light of the 15th amendment.

          IDenying the right to vote to male citizens over age 21 (now including over 18 and women too, thanks to other amendments) based on anything other than crime is not constitutional at all after the 15th Amendment. This was written to address a pre-15th amendment world where states would deny African Americans the right to vote, and this was a mechanism to punish them for doing that (i.e., by taking away the number of reps they would have). The 15th Amendment scrapped that a couple years later, and just said no more denying right to vote based on color.

      2. If one congressional district has 500,000 eligible voters and 200,000 children, and another has 400,000 eligible voters and 300,000 children, don’t the voters in the second district have greater voting power, contrary to the one person one vote standard of Reynolds v. Sims?

        1. That type of problem seems to be part of the reason the Supreme Court in Evenwel v. Abbott allowed states to include the non-voting population toward their apportionment.

      3. Time to cap Congressional district size at 50,000 like the First Congress intended.

        1. Only if you want to support a House of Representatives with 6,400 members and their staffs.

          1. We should increase the size of the House though so at least there is no more favoritism IN THE HOUSE towards smaller states. They are already ludicrously over-represented in the Senate and Electoral College. Right now, Wyoming gets a house rep for its roughly 500,000 people, and California gets a house rep on average for 725,000 people.

            I would write a law saying that congressional districts should be apportioned to the states every ten years such that the average populations of districts are roughly equal (plus or minus a given range). This may require Congress to increase by a few hundred members but I don’t see that as a big problem. The 435 number has been used since 1913 (the Constitution requires no set number), when our country was maybe a third as big.

            By comparison, the UK has 650 MPs in the House of Commons and its population is maybe a 1/4 (?) of ours. Not a perfect analogy because its is a parliamentary system (although it has SMDP districts rather than proportional representation), and may by nature require more seats (not sure about that but I can see a plausible argument to be made), but definitely revealing. Another interesting comp is Israel with 120 MKs and a population of about 7.5 million (proportional representation though).

            1. How about this for a proposal, use the smallest population state to define a base district size.

              Any state up to 125% of that population get’s one Rep. from 125-200% of the base, two reps.

              Past 200% of the base, the number of Reps is integer(state pop/base).

              Let the total number of Reps float.

              To hold down the cost, increase their salaries a little bit, but they have to pay any staff out of their own pockets. Let them do more of the work for themselves.

              There will still be some variation in district size from state to state, but this should minimize it.

              This would also keep the total number of Reps from ballooning out of control.

              1. Nice proposal along lines I am thinking. Don’t have any real concern about cost as there won’t be that many more reps.

              2. Even simpler: each representative counts not just one vote, but the number of votes from the last election. Whether it’s all the votes cast, or just the ones they personally received, it eliminates the need to equalize district size.

                It also encourages people to vote, to increase what their representative proxies in the House. Isn’t that a universally held goal?

                Then you can get really wild and send the top three representatives from each district, each proxying their personal votes, which would do wonders to increase political diversity and break the stranglehold of the two parties.

                And finally, allow voters to check a box as a volunteer — and pick one at random to be a representative too, who proxies all remaining votes.

                1. “Even simpler: each representative counts not just one vote, but the number of votes from the last election. Whether it’s all the votes cast, or just the ones they personally received, it eliminates the need to equalize district size.”

                  This would not be constitutional – districts have to be apportioned by population not by voters and diluting votes in the House based on who votes would create so many constitutional issues, I would not know where to begin.

                  My suggestion for creating more reps to create better equality of one person, one vote is clearly constitutional. The size of the House is not fixed by the Constitution, and regularly changed until 1913, when it was set in stone and has not been changed since for no good reason at all.

        2. Since we have about 3000 Million people in the country, that would mean 6000 members of Congress (House of Representatives). You seriously think the country could function that way?

          1. I meant 300 Million. 6000 is still correct.

          2. “You seriously think the country could function that way?”

            Why not? The House is run by a small cadre of leaders already and votes are largely predetermined by party membership.

            Modern technology means that the rank and file member could remotely participate and vote.

            1. But part of the idea is that with smaller districts the members would be more independent of party leadership. They would be in closer touch with constituents, and more responsive to them, and maybe not need as much financial support from the party organization.

      4. You’ve got to hand it to California. They know how to take care of their apportionment. Apparently, in 2010 they received two extra seats as a result of counting illegal immigrants, and five extra seats as a result of counting all non-citizens (legal and illegal).

      5. There was a case on point recently – apportionment can be determined through total population as opposed to voting population. Additionally, others who can’t vote are also counted for population – convicted felons and children come to mind. Also, non-voting lawful permanent residents, which were left out of your analysis. Yes, if each of these groups – children, felons, and lawful permanent residents are counted towards the population, it increases the voting power of those who vote over a district of elderly and childless residents and citizens with only misdemeanor convictions. In some cases, it increases the power dramatically since prisons are often located in districts with low populations.

      6. The Constitution is clear, only US citizens have the “right” to vote in the USA. IOW one citizen, one vote.

        1. Actually, the Constitution never made such a claim until the 19th and 26th Amendments. Then it mentions citizens and their right to vote. At least its in there now.

          Article I, Section 4.
          The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

          Amendment XIX
          The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
          Congress shall have power to enforce this article by appropriate legislation.

          Amendment XXVI, Section 1.
          The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

          1. Heck, nothing prevents the states from allowing non-citizens to vote.

    4. Unless something tangential comes up, I doubt anyone other than Ilya posts about it and even then only from a policy-disapproving angle. None of the conspirators are election law specialists. Same reason you don’t see posts on Fish vs Kobach.

    5. All the legal analysis I have seen so far is one sided. Feds have controlling legal authority over census. The question has been asked before with no objection. Not sure what legal, as opposed to political, arguments the states/cities have. Not to mention the question is included on the long form.

  3. “[N]otoriously conservative colleagues” wow???

    1. That liberal Adler, saying Scalia was notoriously conservative!

    2. Interesting reaction in that “notorious” does now tend to be used as a signifier for a well-known negative thing. That said, it is also perfectly fine to use the word just to mean “well known,” particularly in the law, e.g., a possession of land by a person was “open and notorious” such that adverse possession principles come into play. I assume – quite confidently – that that was the sense in which Professor Adler was using.

      1. Yeah. Jon, you’re spot on. There is always a risk when non-lawyers hear what lawyers write and say. “Notorious” is, legally-speaking, an entirely neutral word. But in non-legal discourse, it’s usually pejorative, and that’s why exceptions like “The Notorious BIG/RBG” are funny, and why they stand out.

  4. Neither Sotomayor nor Ginsburg needs to worry about re-election, so they can safely admit that Thomas and Scalia aren’t emanations of the Evil One.

    By contrast, an elected official of either party who suggests that officials from the other party might deserve better than a stake through the heart is likely to experience a rough time in the next primary election.

    1. Except when they lost. Then they move on to the next Devil Incarnate. Case in point, John McCain. Hated in 2008, now loved by the left.

      1. Not really loved by the left so much as defended from slanders on the right about his war record, his patriotism, etc.

        1. War record?! Why, he spent the entire war staying at the Hanoi Hilton! How patriotic is that?

          1. If I didn’t know you, TiP, that’d be a Poe’s law moment right there.

      2. Loved from 1999 to 2007 too since considered anti-Bush.

        1. That’s a lot closer to true, Bob – less because he was anti-Bush (he’s a bit hawkish for that, no?) but because of that maverick brand. Stuff like taking the religious right to task.

          1. Yes, liberals and the media lives GOPers who will bash their own party supporters.

            I voted for McCain in 2008 and generally he is fine with me but he gets on TV all the time because he is willing to trash other conservatives. Like Lindsey Graham.

            1. Bob,
              That’s hardly unique to how Dem’s treat Republicans who have the ethics and backbone to stand up to their own party. I remember how Sen. Joe Lieberman won tons of praise from Republicans for how he denounced Prez Bill Clinton during that whole mess. (And he endorsed Candidate McCain for president at a Rep. National Convention, for God’s sake!)

              The fact that–when a prominent member of one political party criticizes someone from his/her own party–the other side is happy about that (and, therefore, happy about that person doing the complaining), is not only not surprising, it’s entirely logical and predicable.

  5. Ed Whelan said on Twitter yesterday that Justice Sotomayor was “thuggish” (yes, he really did!) so he must be upset by Justice Thomas being friends with a thug like Sotomayor.

    1. No, he really didn’t. What he really did (really did!) was refer to “Sotomayor’s thuggish statement” that “[t]here are things [Scalia] said on the bench where if I had a baseball bat, I might have used it.”

      You can debate whether a comment that was in all likelihood made in jest is really “thuggish,” but that’s different that calling her that term.

      1. You can pretend the terms “thug” and “thuggish” don’t have certain racial connotations too so I guess you might debate that as well.

        1. Unless you’re one of those well-educated people for whom the terms conjure up a certain Indian group, they do not have any racial connotations.

        2. Fifty years ago I observed that psychological accusations often reveal more about the accuser’s state of mind than the accused’s.

          1. Cool story, bro.

        3. “You can pretend the terms “thug” and “thuggish” don’t have certain racial connotations”

          Are Union organizers mainly black because”Union thug” is the most common useage of “thug”?

        4. A Google search for “Thug” and “Putin” (that well-known POC), returns 480k hits.

        5. “Thug” implies male more than anything else. And, like it or not, fantasizing about hitting somebody with a bat is classically thuggish.

        6. I don’t know how others react, but I don’t get a racial connotation from the word “thug.”

          1. But the rule is if any term with a negative connotation is applied to a person of color then its racist, even if you use the same term applied to whites just as freely.

            The point isn’t to say the word has a racist connotation, the point is to allow them to call you a racist.

            1. Here is Justice Scalia saying that he loves Sotomayor t death but sometimes thinks about hitting her with a baseball bat.

              No, never mind, it was Sotomayor fantasizing about Scalia.

              That’s just as well, because if I’d called Scalia thuggish, I would have been stereotyping him as an Italian gangster, and the Sons of Italy would be all indignant.

        7. When I see the word “thug” I don’t really associate it with Latinas (wise or not).

          So Whelan must be playing a subtle game of portraying Sotomayor as a brown, heterosexual, cisgendered male to make her appear more menacing to his racist, homophobic, transphobic, sexist audience.

  6. It would be socially awkward to maintain some kind of feud with other Justices – and that’s even before we get to natural human sympathy for people you meet on a regular basis.

    So long as they don’t develop an esprit de corps so strong as to preclude sympathy with ordinary people…

    1. “they don’t develop an esprit de corps so strong as to preclude sympathy with ordinary people.”

      Too late!

  7. Or as my father used to say, “Hate the sin, love the sinner.”

    David and I sang together in the bass section of our church choir. He was as liberal as I was libertarian, but we were good friends. Every now and then one of us would need a ride home after rehearsal. The other would agree, but “only if you don’t mind riding in my car with my bumper-stickers.”

    I note that “HTS-LTS” is absolutely essential to good parenting during a child’s junior-high-gone-feral years.

  8. Justices Breyer and Thomas sit next to each other on the bench and seem to enjoy each other’s company.

    Strong ideological disagreements do not poison everything, especially when you have to live or work with the person. I was reading a NY Review of Books piece, e.g., on a British PM and it noted while he served in WWI, his brother was jailed as a conscientious objector. Their mother said she didn’t know what one to be more proud of.

    A court is a type of family too. Anyways, Thomas has a personable side that comes up in public appearances.

  9. It is said to love your enemies, the wisdom of which might include avoidance of futile efforts to achieve capitulation. Left unresolved is how to avoid poisoning relationships. If the choice is between speaking your peace and preserving a relationship, it only stands to reason to speak your peace on certain subject categories.

    Live and let live, not live and let die. If Thomas wrote an opinion in contradiction of the most basic of natural rights, a cooperative relationship could, and should, not be sustained, by any standard of decency. Alternatively, affiliation with a group unsupportive of universal natural rights does not preclude a working relationship, as long as those views aren’t subscribed to individually.

    1. It looks like you’re blurring the lines between a working relationship and a personal one.

      These are very different things.

      1. In retrospect, any relationship, personal or business. It’s immoral to be affiliated in any way, on a going basis. Of course, that doesn’t mean one stops trying to persuade someone they are wrong. Anything more than that is enabling the status quo.

      2. The personal is political. Go to hell!

        1. Thank you for sharing your viewpoint.

        2. I’m not saying all politics should be personalized. I’m saying their are some viewpoints that make it unavoidable.

  10. Joe_JP, was that a recent review, or old?

  11. Political disagreement need not poison the broader political discourse, either, but unfortunately downright silly (if not malevolent) accusations of fascism and racism remain the norm.

    I guffawed today at the NYT’s laughable opinion headline:

    “Will We Stop Trump Before It’s Too Late?
    Fascism poses a more serious threat now than at any time since the end of World War II.”

    If you are against open borders, or you point out blatant political advocacy and bias by the media, or corruption and favoritism and double standards in the bureaucracy’s administration of justice, then you = A FASCIST, RACIST, BIGOT threat to society.

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