Making Sense of Justice Sotomayor's Comments on S.B. 8

Did she cross the line?

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On Wednesday, Justice Sotomayor spoke at an ABA conference about diversity. The event was livestreamed to attendees, but I could not find a video anywhere. The ABA Journal included a screenshot of the Zoom call:

During the event, Justice Sotomayor opined on S.B. 8. You know my general policy about relying on reporter paraphrases, though I am slightly more confident that SCOTUS reporters covered the event.

Here is the account from the Washington Post by Ann Marimow and Bob Barnes:

Sotomayor was among the four dissenters who would have stopped the law taking effect, and in a virtual appearance at an American Bar Association summit on diversity, she mentioned the Texas law, which she wrote in her dissent was "flagrantly unconstitutional." She told a questioner that "there's going to be a lot of disappointments in the law, a huge amount."

"As you study cases and look at outcomes you disagree with, it can get frustrating," she said. "Look at me, look at my dissents, okay?" she said, laughing. "At least I have a vehicle, I have a dissent mechanism that I can explain how I feel."

She continued: "So you know, I can't change Texas's law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don't like."

"I'm pointing out to that when I shouldn't because they told me I shouldn't," she said, referring to the practice by which justices refrain from commenting outside the court setting on cases that are before them.

"But the point is, there are going to be a lot of things you don't like," she said.

Ariane de Vogue of CNN also reported on the event:

"There is going to be a lot of disappointment in the law, a huge amount," she said Wednesday at an event hosted by the American Bar Association. "Look at me, look at my dissents."

Earlier this month, Sotomayor penned a scathing opinion when the court's majority allowed the Texas law to go into effect, calling the action "stunning."

"You know, I can't change Texas' law," Sotomayor said Wednesday, "but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don't like."

The justice then caught herself speaking about a contentious case currently before the court.

"I am pointing out to that when I shouldn't because they tell me I shouldn't," she said. "But my point is that there are going to be a lot of things you don't like" and that the public can change.

The quotations from CNN and WaPo are nearly identical, so I have a relatively high degree of confidence that Justice Sotomayor was accurately quoted. (If anyone finds the video, please send me a link so I can transcribe it). Still, it is not entirely clear what she was saying.

As I read it, Justice Sotomayor urged the people in attendance who oppose S.B. 8 should lobby to repeal S.B. 8. But then she stopped herself, recognizing that she had gone too far. The sentence, as quoted, is hard to follow: "I am pointing out to that when I shouldn't because they tell me I shouldn't." Who is "they"? Was someone in the room waving at her, telling her to stop? Or did a flag go off in her head mid-sentence? Did she suddenly recall some ethics advice she received?

Did Justices Sotomayor cross the line? I have a few thoughts.

First, it is fairly common for Justices to write that laws should be changed in a published opinion. Perhaps the most famous example of this dynamic was Justice Ginsburg's plea to Congress in Ledbetter v. Goodyear. But these pleas generally come in the opinion itself. Sotomayor did not make such an appeal in her Jackson dissent. She made it the appeal in a public speech.

Second, it has become fairly common for Justices to talk about their opinions--especially their dissents. But Justice Sotomayor did not argue in her Jackson dissent that S.B. 8 should be repealed. She argued the law was unconstitutional. Her "lobby" argument was presented for the first time in her remarks.

Third, it is extremely rare for a Justice to talk about a case that is still pending. On September 1, the Court denied a stay in Whole Woman Health v. Jackson. But that case is now pending before the Court on plenary review. The parties filed a petition for certiorari before judgment. The case is pending. And I know from personal experience that Justice Sotomayor takes this issue seriously.

In 2016, I mailed copies of my book Unraveled to all of the Justices. Several  sent me very nice notes in response. Some of the Justices may have read the book on their Kindle. Chief Justice Roberts probably used it for kindling. Alas, Justice Sotomayor's assistant mailed the book back. Her letter stated:

Justice Sotomayor is grateful to you for sending her a copy of your book, Unraveled: Obamacare, Religious Liberty and Executive Power. While the Justice appreciates your kind gesture, unfortunately, she is unable to accept any materials that in any way relate to pending litigation that may come before the Supreme Court. For this reason, I am returning your book with this note. I hope you understand.

Four months earlier, the Supreme Court had decided Zubik v. Burwell, and remanded the contraceptive mandate litigation for further proceedings. The case I wrote about was no longer pending, but there was the possibility that the matter could return to the Court.  I long thought that Justice Sotomayor's policy was overly precautious, but it made sense.

By Justice Sotomayor's own standard, her remarks about S.B. 8 crossed the line. To avoid any appearance of impropriety, she was unwilling to even accept a book that discussed an already-decided case. She returned the book to me--with taxpayer funded postage--lest anyone think that my writings influenced her opinion! Had she thrown the book in the trash, or the fireplace, no one would have ever known. Yet, she urged a public audience of attorneys to lobby against a law, the legality of which is presently before the Court. Indeed, Justice Sotomayor's comments seemed to recognize she went too far.

Will she recuse? Probably not. And does anyone doubt how she will vote in light of her dissent? Still, Justice Sotomayor exercised poor judgment here. When asked about a pending case, she should have simply said, "I cannot comment on a pending case."

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  1. Josh, there are a number of norms of legal academia that you do not abide by, but the kind of childishness on display here is surely one of your more obnoxious unorthodoxies.

    1. What childishness? Your thinking this piece is childish says more about you than Josh.

      1. "[He's] rubber, you're glue, nyeeerh!"

        No, you're just an idiot.

    2. Eh, sometimes I do think Blackman’s a little too partisan for my taste, but he’s got a good point here.

  2. How are those two things (accepting a book and commenting) the same thing?

    In one case, she is accepting information *from* an external party not submitted through the courts which might be thought to affect how she is thinking/deciding the case.

    In the other case, she is describing her views about a case that is before her.

    Now, there are reasons one might feel both rules are appropriate but they are hardly the same concern. In one case the worry is that it could be unfair to a party before the court for the judge to receive information/arguments that their attorney doesn't have a chance to rebutt/respond to. In the other case she's merely revealing her tenative thoughts on the case so far (which she should have but one might worry that declaring those out-loud will make her unduly reluctant to change her mind in response to argument's raised in the briefs/oral arguments).

    So they aren't the same concern and the reasons not to publicly comment on her thoughts before the case is fully argued don't really have much bite in a case over abortion. I mean it would just be theater for her to pretend her views on this issue might be swayed by some novel argument in the briefs.

    1. Her refusal to accept the book is just silly. No one is forcing her to read it and, anyway, does she really decline to receive the New York Times lest she be seen as corrupted by being seen in the same room as it?

      1. Her refusal was likely intended to be a rebuff. "Don't send this BS to me, loser."

        Josh probably understood it that way, too. He probably kept the letter because it nursed his fragile little ego and his persecution complex. "Sotomayor is such a b****, I'm going to keep this little memento."

        Josh is now invoking it like it was a serious assertion of committed principle, because it serves his narrow purpose of trying to smear her.

        Just petty and childish, from start to finish.

        1. Her assistant said she was "grateful". Was she lying?

          1. No clue. I do know better, however, than to treat these kinds of letters as though they're statements under oath.

            Sotomayor went through the effort of having Josh's book physically returned to him. Notwithstanding what the enclosed letter precisely said, that sends a message (and not the one Josh claims to have drawn from it).

          2. Bob,
            Is "she" the Justice? Or the assistant?

            And, by the way; the answer in 95% of these cases is: Yes, she is lying. This is the sort of lie that is told ALL THE TIME. We all recognize that it's a lie, we all understand that it's a little white lie, and no one but you gives a crap. When you write in to Round Table Pizza headquarters to complain about the pepperoni pizza you bought last Tuesday, and you get a return letter (nowadays, I guess probably an email), and it says, "Round Table appreciates you taking the time to let us know your concerns that your pizza had 27 pieces of pepperoni, rather than your usual 28 pieces..." Bob, that company is lying to you. It does NOT appreciate your letter of complaint. It actually thinks you are a pain in the ass, for bothering it on such a trivial matter.

            But, as you get older and wiser, you will learn that people often "soften" language. Even if just as a social construct. This was not the "Aha! Got you!!!!" moment that you think it was.

            1. Don't be so condescending.

              I have the actual text, you and Simon have mind reading based on your irrational hatred of Prof. Blackman.

              1. You have the actual text, as do we, yet you lack the ability to comprehend what it says.

        2. Never attribute to malice what bureaucracy, stupidity and oversight can explain.

          I'd be utterly shocked if Sotomayor was even aware she was mailed a book. All thats going on here is that Sotomayor left instructions with her staff to mail items back anfmd the other justices said: meh, throw them in the pile over there.

          Whats really going on is thaf Sotomayor doesnt want anyone to be able to say: hey you accepted this book full of unbriefed facts in this case and accuse her of impropriety. Sending everything even sorta related back is just the safer course in terms of improper influence perceptions but more likely to offend.

  3. Maybe a simpler way to put the point is this:

    It makes plenty of sense for an attorney arguing before SCOTUS to complain that Sotomayor was influenced by arguments she received in the mail and that this denied them the opportunity to rebut them. However, it doesn't make any sense at all for an attorney to complain that Sotomayor thought about the case herself and considered the merits of the issue before the case was decided. The concern there is merely that voicing views before oral arguments might discourage a justice from changing their mind if an attorney raises a point they hadn't considered.

    But it would be just theater to pretend any justice is going to hear some kind of novel, plausibly mind-changing, argument on an issue they've all thought about (and read deeply in law school) for so long.

    1. Why, exactly, is it more corrupting for Sotomayor to read Blackman's book than the journals that are not banished from her presence?

      1. When Josh sent her the book; did he make sure she understood that he was sending it also to all the other Justices? If I know that I'm getting materials that all the other judges are also getting, then I'm less concerned about potential unfairness...similar to access to legal journals that are available to all, as you noted.

        1. I'm not finding your suggested distinction a convincing one.
          I'm sure Sotomayor receives a lot of material opining on the law that is not equally present in the office of every other Justice.

      2. I don't think it is more unfair. But it's a different kind of worry and it's totally plausible she weighs those two concerns differently. The question wasnt whether she made the right call but was a hypocrite and just having views you or I disagree with isn't hypocritical.

        Also, I think it's fair to say that all the justices play abortion issues a bit differently. While I'd prefer the conservative justices to just overrule Roe and think it's kinda corrosive to court legitimacy to let their (imo totally correct even tho I think statues should guarantee right to fully funded abortion until birth) skepticism about Roe manifest in shadow docket rather than clean repeal). But I understand why they play it that way since the Dems are trying sooo hard to throw SCOTUS under the bus when they didnt bother to make passing a law protecting abortion a priority during the 20+ years they've known which way the wind was blowing. But once justices on one side of the issue are making those kind of statements it's not unreasonable to think that allowing that asymmetry would be the worse option.

  4. Professor Blackman, you wrote: "She returned the book to me [...] lest anyone think that my writings influenced her opinion!"

    That's one possible reason. There might be a different reason. Like, maybe she doesn't think a book by you would be worth her time.

    And you continued: "Had she thrown the book in the trash, or the fireplace, no one would have ever known."

    Maybe she wants you to know. Maybe she's dropping you a hint.

    1. Blackman complains about her insufficient mendacity, but you assert that she (through her clerk) has picked him out as a target for it. Interesting.

    2. "Maybe she wants you to know. Maybe she’s dropping you a hint."

      Her assistant said she was “grateful".

      1. Grateful for the opportunity to send Blackman his stupid book back

        1. Not what the letter says.

          1. Read between the lines

            1. More mind reading from another irrational hater of Prof. Blackman.

            2. You're not reading between the lines of anything written. You're imagining things, pleasant for you, apparently, which are mere possibilities.

              I don't attach the significance to the letter that Blackman does, but it is anyway perpendicular to the main point that Sotomayor is incapable of concealing her out-of-control hackishness.

  5. I think Justice Sotomeyer is signalling that it is likely that the current Supreme Court majority is likely to reverse or at least substantially limit Roe and Casey.

    I’ve generally taken the view that judges are entitled to have personal opinions on major issues, including making recommendations to legislatures. And they can make these recommendations in their judicial opinions, as long as they separate out their personal opinions from their legal decisions and reasoning.

    I think it’s also understandable that justices on the losing side of an issue like this would be very unhappy.

    I suspect Justice Sotomeyor had an unguarded moment here. But I wouldn’t be too hard on her or treat this as some sort of serious ethics violation. It appears her hopes, indeed her settled expectations, are in the process of being dashed. It understandable that she would feel disappointed, and her disappointment might sometimes come out.

    Supreme Court justices are human beings, not creatures of stone.

    And if you can’t feel personal sympathy for someone on the opposite ideological side on a hotly contested issue, how can you possibly expect to have a peacably governed republic? How can government ever be anything more than a series of vengeances taken on enemies? How can you have a civil society?

    It’s important.

    1. Josh isn't treating this as a "serious ethics violation." He makes no argument that it violates any ethical rule. He simply states that Sotomayor's comments were of a kind he views to be "extremely rare" and present at least a superficial inconsistency with a position he claims she took in a polite brush-off letter he apparently archived.

      That's all this is. He suggests she should recuse because she didn't want to read his unsolicited book.

      1. I don’t really know much about the world of academic legal publishing but that struck me as taking a lot of chutzpah to send the justices your book.

        1. "...that struck me as taking a lot of chutzpah to send the justices your book."

          It doesn't strike me that way.

          1. If one were inclined to hoist Josh by his own petard, one might note that Josh's sending of his book directly to the judges - rather than, say, arguing for a particular position on a particular case through ordinary channels like amici briefs, which have the benefit of being public and conventional - is a highly irregular attempt to influence the Court's reasoning and raise his personal profile as a potential advocate before them. One might further suggest that such activity is unbecoming for a professor putatively informed about and ostensibly committed to the norms of the legal profession.

            But I am not personally that interested in pointing out all of Josh's double standards and rank hypocrisy. Not enough hours in the day.

            1. It's not "highly irregular". I'm sure it's perfectly regular for Sotomayor to receive all sorts of communications about law and cases, and I see no other than pretextual reasons to object to that, so long as there's no currency folded in. None of the Justices lives in a bubble where all he ever sees is briefs.

          2. Really? You don’t think it’s kind of bold to send members of the highest court your book on the belief they might be interested? Or really to anyone you don’t personally know?

            1. Exactly. I don't. Lobbying politicians is a perfectly ordinary activity, and this is not an objectionable way of doing so.

        2. Or, for that matter, to flatter yourself with the belief that any of them might possibly have read it.

          1. I’d bet good money that at best, the most conservative chambers simply stuck it on a pile of other books and readings and promptly forgot about it.

            1. Given Josh's penchant for logorrhea and self-promotion, I don't doubt that they have a whole "Josh Blackman" pile (or perhaps, bin).

      2. "He suggests she should recuse because she didn’t want to read his unsolicited book."

        No, that is not remotely what he said.

        1. Here is what he said:

          Indeed, Justice Sotomayor's comments seemed to recognize she went too far. Will she recuse? Probably not.

          This is an apophasis. No one was talking about whether Sotomayor should recuse, Josh cited no judicial norm counseling in favor of recusal, yet he felt obliged to mention it as a possibility that he nonetheless does not expect Sotomayor to employ.

          The point is to imply that she ought to recuse, while conceding that she probably won't.

          Learn to read.

          1. Take your own advice. and relearn how to read.

            The quote you provide is about what she said at a public speaking event, not about her reaction to his book.

            1. I write comments with the expectation that the people who read them will also have some reading comprehension of their own, and will not need me to spell out every single inference to its minutest detail. I do not write comments to anticipate the petite gripes of trolls who seek only to exhaust me with their pointless objections.

              Josh claims that Sotomayor "crossed her own line" on public statements and actions that might cause observers to question her impartiality when hearing arguments on matters that are before the Court. As evidence of this "line" and the seriousness with which she takes it, he cites only: a passing and self-deprecating remark she made at the very same time that she putatively "crossed" this line, and a brush-off letter he received once.

              The two cites are independently important. He cites the contemporaneous remark to show that Sotomayor acknowledges the existence of this "line" and that she may have crossed it. He cites the letter as a demonstration of how seriously she should be understood to take that line (which is necessary, because otherwise one could easily point out how her public statement didn't betray that she considered the matter very serious). As such, he asks, "Will she recuse?" The implication being that she probably should, if she really cared about maintaining the appearance of impartiality according to her own standard. The further implication being, of course, that since she probably won't, she's also a hypocrite.

              I do not really understand why you red meat-eaters need to have this spelled out so explicitly before you will acknowledge what you already fully see on your own. You exist in this weird rhetorical and logical space where, despite relying on bad-faith, strawmanning, and red herring arguments, and knowing on some level that's what you're doing, you nonetheless still insist that no one can properly call you out for doing so.

              1. Learn to read.

                The quote you provided was about Sotomayor's near-obliviousness to having crossed the line, not a "suggest[ion] she should recuse because she didn’t want to read his unsolicited book.” This has already been pointed out to you.

                And of course she should recuse after having lobbied for the repeal of the law she will be called upon to judge. The appearance of bias is clear. That IS the standard, you know. You also know as well as I do that she is shameless.

                1. None of this is right. You're a moron.

    2. Agreed. The important quote in this speech is "There is going to be a lot of disappointment in the law, a huge amount." She was telegraphing that Roe and Casey are on their last legs, which would kick the abortion issue back to the states. She wants to make sure that pro-choice forces are involved in state politics after Roe and Casey have been scrapped.

  6. Of all the issues that Justice Sotomayor might consider personally important, whether her bodily autonomy is subject to the whims of state legislatures (composed of mostly of white men) is probably near the top of the list.

    Would you criticize Thurgood Marshall for opining that racial segregation in education was unconstitutional before Brown v. Board of Education was decided? Dred Scott?

    In the case of the Texas law, not only was the law was explicitly designed to place a heavy burden on obtaining an abortion, it specifically established a time frame that is without question in violation of precedent. And the bounty system that gives standing to anyone is just cra-cra-crazy. Overall, it is shocking that such a law was ever passed.

    I'm gonna let this one slide just like I'd let slide a comment from Justice Thomas about, say for example, a law that reinstituted segregation. Sometimes, there are laws that are so clearly unconstitutional that even a neutral judge can simply read the statute to understand that it is unconstitutional.

    1. ...She's like 67. I think her personal bodily autonomy is safe from this by now.

      1. Even when she was younger, I have a hard time believing any man would be willing to try to make acquaintance with her autonomy.

        1. brutal - but true
          same with her pesonality

          1. You guys are both sexist dicks.

            1. we are just honest

              1. No. You’re sexist. You try to defend it with “honesty” but you’re just another in long long line of forgettable mediocre men who think that “she’s crazy and ugly” are legitimate points to be made about much more accomplished women.

                1. How unfair, can't you see the line of dimes begging to sleep "Tom for equal rights"?

        2. "have a hard time believing any man would be willing to try to make acquaintance with her autonomy."

          She was married for a while.

    2. This is not remotely akin to Thurgood Marshall opining that racial segregation in education was unconstitutional before Brown v. Board of Education was decided. It is akin to Thurgood Marshall lobbying for people to work to repeal whatever specific law empowered the relevant Board of Education to separate the races while Brown was working its way to the Court on which he sat for a consideration of the merits.

      1. Which is a convenient way of acknowledging the distinction (which you do not bother to note).

        Lobbying to repeal legislation is a completely separate matter from evaluating legislation for its constitutionality. Wanting legislation to be repealed does not mean that a justice will conclude that it is constitutionally invalid if it is not repealed. (Unless you're Roberts, I suppose, and opposed to the Voting Rights Act, campaign finance reform, or labor unions.) As Josh himself likes to remind us, justices ought to limit themselves, in their judicial work, to considering just the law, and not concern themselves with how "political" that work might appear to be, to those outside the Court. It would be absolutely consistent with his views on the other justices' recent public statements to assert that Sotomayor can also distinguish between the two realms and bring appropriate analytical frameworks to each.

        1. You are deeply ignorant and/or dishonest. I MADE the distinction, so to say I "failed to note it" is bizarre. That the two things are distinct is not leave for Justices to engage in both under the circumstances I specified.

          Marshall was of course unhinged from the law. Witness his loonings on the death penalty. Sotomayor follows in those footsteps.

      2. Uh, Thurgood Marshall joined SCOTUS in 1967.

    3. Of all the issues that Justice Sotomayor might consider personally important, whether her bodily autonomy is subject to the whims of state legislatures (composed of mostly of white men) is probably near the top of the list.

      The things you learn on legal blogs. I had no idea she was an anti-vaxxer.

    4. Would you criticize Thurgood Marshall for opining that racial segregation in education was unconstitutional before Brown v. Board of Education was decided? Dred Scott?

      I mean, he was a lawyer then, so it was kind of his job to advocate for his position.

      1. IIRC he was the lawyer in a companion case, and participated in the Brown I oral argument.

    5. (composed of mostly of white men)
      -----
      Why does this matter? We are a representative Republic.

      Looking at the 2018 Texas Gubernatorial exit polls, Abbot won both the "male" and "female" vote. Why should the votes of the people who voted for Abbot be invalidated based upon his sex and race?

  7. This is lame as hell.

    1. This is the future of conservative legal academia, Sarcastr0.

      I would feel sorry for right-wingers if they weren't such antisocial, bigoted misfits.

      1. The comments you two clowns make are almost invariably lame as hell, and these are not among the rare exceptions.

  8. We are currently living in a climate of "anything goes" ... many of the norms of society and the various professions have been thrown out the window, initially under cover of COVID and now because that seemed to work. Sotomayor is just following the trend ...

    1. Obergefell, e.g., was decided before COVID.

      1. How is Obergefell germane to this discussion?

        1. It's an example of SCOTUS throwing the norms of society out the window, of course. Please try harder to pretend to keep up.

          1. And contrary to the Chicken Little predictions of the haters at the time, the sky has not since fallen.

    2. Indeed. Things have degenerated to such an extent that some people even believe that Josh Blackman is a serious legal scholar whose writings should be taken seriously. Truly a sick society.

  9. I’ll take brutal honesty over straight up lying, trolling, and attempted but failed gaslighting like your favorite thirst trap Justice did a few weeks ago.

    1. I believe you're referring to ACB.

      Both are distasteful.

      1. Indeed. But I find the pretense more grating when it’s such an obvious lie.

        1. I, on the other hand, am offended more by Sotomayor's out-of-control stupidity.

          But, yes, ACB embarrassed herself. The Justices without fail cough up that lie (as Thomas did when forced to comment on ACB's speech in a Q&A recently), but only the most gormless seek out opportunities to look so dishonest.

  10. Let's compare the attitude and thoughts about results/laws that a Justice likes or doesn't "like". Justice Scalia: " A law may be Constitutional but stupid". Justice Sotomayor: "Laws that you will not like". The outcome for what is liked is not the role of SCOTUS.

    What were the actual "legal issues" before SCOTUS in the request for an emergency injunction against SB8? Can a state judge be enjoined from hearing a case in controversy when there was not in existence an actual case in controversy for a judge to hear? SCOTUS precedent that merely hearing a case in controversy does not render a judge a state actor. Is it improper to have Federal Constitutional issues heard through State Courts? The trial record finding of facts would be in State Court instead of Federal Court. There's nothing improper about that nor unprecedented.

    There are dumb and stupid laws and regulations galore across the ideological perspective. There are established rules of Federal Civil Procedure and states have rules of civil procedure. Everyone follows the rules of civil procedure. Simply because a judge or Justice doesn't like a law or thinks it's stupid, that doesn't exempt or excuse following the rules of civil procedure.

    Friendly litigation is a common everyday practice. Get a proper case in controversy and proceed through the courts. The friendly litigation could have been "teed up" months ago. Cynically, I think that the "struggles with the rules of civil procedure" make for better fundraising, politics, and media ratings.

    1. Yeah Scalia said that, but that’s not necessarily how he behaved.

      1. It says something when a Justice no longer even pretends.

        1. That they’re honest about reality finally and don’t think so highly of themselves?

          1. Being less than honest about reality and thinking too highly of themselves could be applied to a multiplicity of attorneys, individuals, institutions, politicians, government officials, academia, and regular commenters to this Blog.

          2. No. That doesn't sound remotely like The Wise Latinix.

  11. Sotomayer stands out as the one justice lacking the necessary judicial temperment to be a judge, much less a SC Justice.

    That was evident in her actions in the Ricci case. Further confirmed in her dissent in Bamn v Shutte, where her dissent can be summarized as - Its unconstitutional for a state to adopt a constitutional amendment requiring compliance with the 14th amendment of the US constitution.

    1. “Its unconstitutional for a state to adopt a constitutional amendment requiring compliance with the 14th amendment of the US constitution.”

      That’s not what she was saying. Banning affirmative action is not necessarily enforcing compliance with the Fourteenth Amendment. That’s just your view of it.

      And I don’t think you can say she doesn’t have judicial temperament because of one dissent. That’s ridiculous. I mean if that was the case, no justice would have judicial temperament because they all have authored bonkers dissents (or majority opinions for that matter). I mean have you ever read a Scalia or Alito dissent? Lots of partisan parades of horribles. And then there is Thomas: just ignoring everything that lawyers and judges say about the law to advance his own idiosyncratic views referencing his own dissents and concurrences on pretty much every possible topic. The height of judicial arrogance.

      1. Go back and read Shutte v Bamn

        that in a nutshell is what her dissent said.

        Affirmative action is a violation of 14A - Equal protection of the laws

        Her Ricci actions was a blatant example of intentional sanctioning of discrimination.

        1. Affirmative action is a violation of 14A – Equal protection of the laws

          It’s not per Fisher II

          1. But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art. I, §26, which provides in relevant part that Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

            1. Above is the 2nd paragraph of sotomayers dissent.

              section 1 of 14A - Note "equal protection of the laws"
              All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

          2. It is, despite Fisher II. SCOTUS routinely gets the Constitution (and other law) absurdly wrong. And, no, no one is obliged to respect bonkers opinions merely because five or more clowns in robes emit them. Contra ACB, Court hackery is a very real thing.

            1. But since the court says it’s legal, it’s ridiculous to suggest that Sotomayor “lacks judicial temperament” because she authored a dissent in a case on the premise that it’s legal. Tom is acting from a completely wrong premise to justify his position.

              1. Michigan adopts a State constitution amendment to ban discrimination

                care to show us how fischer / grutter/ etc complies with 14A?

                1. I don't need to, the opinions explained it, dude. Yeah you disagree, but the point is: your criticism of Sotomayor's "judicial temperament" is based on a premise the Court itself has rejected! Which is just more evidence that you're simply a sexist dick.

                  1. her judicial temperment was on display in Ricci

                    1. Because she aggressively questioned people? Bet you never said that about Justice “Isn’t the VRA a racial entitlement?”

                      Your sexism is showing again.

                    2. LawTalkingGuy
                      September.30.2021 at 1:23 pm
                      Flag Comment Mute User
                      Because she aggressively questioned people? Bet you never said that about Justice “Isn’t the VRA a racial entitlement?”

                      A) you statement indicates you have no clue on Sotomayer's and the rest of the panels' behaviour in Ricci

                      LawTalkingGuy
                      September.30.2021 at 10:52 am
                      Flag Comment Mute User
                      I don’t need to, the opinions explained it, dude. Yeah you disagree, but the point is: your criticism of Sotomayor’s “judicial temperament” is based on a premise the Court itself has rejected!

                      Yet 7 justices in Schuttee v Bamn did not reject it.

                      As you said - you dont need to read the opinion
                      A) Your +

              2. Eagerly deriving further bizarre clownishness from previous bizarre clownishness does indeed imply that Sotomayor is a jackass and unfit to be on the Court.

      2. And I don’t think you can say she doesn’t have judicial temperament because of one dissent. That’s ridiculous.

        Then it's a good thing that he didn't say that.

    2. Saw what you said upthread, my apologies for thinking this was a good faith criticism. I won’t make that mistake again.

  12. You know my general policy about relying on reporter paraphrases...

    The embedded link goes to Blackman's "Did Justice Barrett Say She Was 'Concerned About Public Perception of [the] Supreme Court'?" where he wrote:

    I am only concerned with actual words spoken by the speaker. I do not care about how some reporter characterized the words. I've read every press account I could find, including the Louisville Courier-Journal and Louisville Public Radio. I could not find a single quote from ACB that expressed such a sentiment.

    https://reason.com/volokh/2021/09/14/did-justice-barrett-say-she-was-concerned-about-public-perception-of-the-supreme-court/
    Embarrassingly for Blackman, the Louisville Courier-Journal had actualy said “U.S. Supreme Court Justice Amy Coney Barrett told a crowd… here ‘My goal today is to convince you that this court is not comprised of a bunch of partisan hacks’…
    So, whatever Mr. Blackman's policy on paraphrases, it seems that his policy on actual quotes may be to ignore them.

    1. ...I will add that Sotomayor here proves the absurdity of ACB's "goal". Sotomayor IS a transparent example of the genus partisan hack.

      And, unlike Blackmon, I'm perfectly happy that she doesn't conceal it at all well.

      1. * Blackman.

        About the only thing less functional than SCOTUS is Reason's commenting software.

  13. Her comments shows that people perceive the ABA as a left wing organization. She couldn't imagine that her listeners did not fully agree with her on abortion and other things.

    1. I think you meant "why", not "that".

      But that's one of the least of the actual "whys". The reason that the ABA is seen as a left wing organization is that is so obviously is one.

  14. This is the dumbest drivel I've read since JB's last post. And just in time for Sam Alito's remarks to render stark the hypocrisy.

    1. You could make your dishonesty starker if you quoted Alito's remarks, but of course you wouldn't. As it happens I've already quoted what seems to be the allegedly objectionable passage below. What else do you have?

  15. So what? Justices have political opinions. It is not at all wrong for them to state them, and that is far better then for them to hide their politics and pretend to be neutral. Also the R justices do the same thing.

    1. Justices should generally refrain from stating political opinions. See, for example, the wildly inappropriate opinion of the recently embalmed one about Trump. Anyway, Sotomayor will be judging SB8. Sotomayor's lobbying for repeal of SB8 is way, way over the line. That you conflate this with "stating political opinions" would be stunning in its dishonesty if I thought better of you.

  16. There is nothing remotely improper about an Associate Justice of the U.S. Supreme Court publicly stating that she does not have the power to change the laws of Texas. As a matter of fact, I'm wondering how much smoke would presently be rising from the South Texas College of Law if she had asserted the opposite.

    The Supreme Court can point out that enforcing a law against citizens of the US or others would be against the state's obligations to the federal compact; it can make a guess as to how the judiciary of the state might interpret the state's laws; or it can point out that a certain law was passed improperly and therefore was never valid in the first place, but it can't change the law of the state as passed by the state legislature and interpreted by its courts.

    A state is a state, and by natural law, it has the highest authority over its own laws. (This natural law basis is part of the reason that state constitutions have a different relationship to implied powers than does the Federal Constitution.) It can put its people to death, tax them, or keep them from whistling near a church on the Sabbath.

    But at the same time, the conduct of the state (no names, no pack-drill) can't threaten the Union.

    Mr. D.

    1. There is nothing remotely improper about an Associate Justice of the U.S. Supreme Court publicly stating that she does not have the power to change the laws of Texas.

      You know perfectly well that that's not one of the objectionable parts of what Sotomayor said. Why are you pretending otherwise?

  17. It appears that Justice Alito has also commented on Whole Women´s Health v. Jackson. https://news.yahoo.com/alito-says-roe-v-wade-223800564.html Is Professor Blackman going to call for his recusal from future proceedings in that case?

    1. The analogy between what Sotomayor said and

      Put aside the false and inflammatory claim that we nullified Roe v. Wade. We did no such thing. And we said that expressly in our order.

      ...eludes me.

      1. Why am I unsurprised? The point of my comment was to call out Professor Blackman's selective umbrage.

  18. As I read it, Justice Sotomayor urged the people in attendance who oppose S.B. 8 should lobby to repeal S.B. 8. But then she stopped herself, recognizing that she had gone too far. ..First, it is fairly common for Justices to write that laws should be changed in a published opinion. ...But these pleas generally come in the opinion itself. Sotomayor did not make such an appeal in her Jackson dissent. She made it the appeal in a public speech.

    Actually what she said was "I can't change Texas's law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don't like." Which is to say that she told people who opposed a law to... work for its overturning through the democratic process. Truly shocking, I know.

    Why is this anything but pure anodyne Civics 101? And why has Alito's intellectually dishonest remarks at Notre Dame gotten a completely pass here?

    Alito acknowledged that the court has had to resort to the emergency docket more in recent years and said that was due to a series of factors, including that during the Trump administration, "a number of the President's important initiatives were enjoined by a district court judge."

    Why is it the Supreme Court's job to rescue "the President's important initiatives?" And why does it only seem to be Republican presidents' initiatives that are "rescued" through the use of the emergency docket?

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