Justice Sotomayor Voices Her Frustration with Supreme Court and Advocates

Some candid remarks at the University of California at Berkeley

CNN reports on remarks Justice Sonia Sotomayor gave yesterday at the University of California at Berkeley.

"I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting," Sotomayor, the court's senior liberal member, said at an event at the University of California, Berkeley School of Law.

"How can you look at those people and say that you're entitled to despair? You're not. I'm not," she said, responding to a question from the school's dean about how students there increasingly feel discouraged by the current court and how it's shaping American law. "Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice, and it can take time and it can take frustration."

According to this Bloomberg report, she also finds the work taxing.

"And to be almost 70 years old, this isn't what I expected," Sotomayor said Monday during an appearance at the University of California, Berkeley's law school. "But it is still work that is all consuming and I understand the impact the court has on people and on the country, and sometimes the world. And so it is what keeps me going." . . .

"Cases are bigger. They're more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I'm tired," she said. "There used to be a time when we had a good chunk of the summer break. Not any more. The emergency calendar is busy almost on a weekly basis."

Justice Sotomayor also expressed concern about they way some advocates present their cases to the Court. From the CNN report:

"I can't tell you how often I'll look at (Justice) Neil Gorsuch and I'll send him a note and say, 'I want to kill that lawyer.' Because he or she didn't give up that case. Because by the time you come to the Supreme Court, it's not about your client anymore. It's not about their case," she said. "It's about how that legal issue will affect the development of law and how you pitch it – if you pitch it too broadly, you're gonna kill the claims of a whole swath of people."

These later remarks may well provoke some interesting discussion about the obligations of Supreme Court advocates. It is a fair observation that zealous advocacy for an individual client may come at the expense of a broader cause otherwise aligned with that client's interest, as may happen when a criminal defendant's attorney petitions for certiorari in a case that is likely to result in a pro-prosecution ruling from the Court. Whether this means that lawyers should refrain from such representation, or simply consider the likely downside risks in crafting and presenting arguments, is an important question.