Making Sense of Justice Sotomayor’s Comments on SB 8 –


Judge Sotomayor spoke at an ABA conference on diversity on Wednesday. The event was broadcast live to attendees, but I couldn’t find a video anywhere. The ABA Journal included a screenshot of the Zoom call:

During the event Judge Sotomayor spoke on SB 8. You are aware of my general policy regarding the use of journalist paraphrases, although I am slightly more confident that SCOTUS journalists covered the event.

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

Sotomayor was among four dissenters who reportedly kept the law from coming into effect, and in a virtual appearance at an American Bar Association diversity summit, she mentioned the Texas law, which she said. wrote in his dissent as “flagrantly unconstitutional”. She told an interviewer that “there are going to be a lot of deceptions in the law, a huge amount.”

“When you study cases and look at results that you don’t agree with, it can get frustrating,” she said. “Look at me, look at my dissent, okay? She laughs. “At least I have a vehicle, I have a dissent mechanism that I can explain how I’m feeling.”

She continued, “So you know I can’t change the law of Texas, but you can. You can and anyone who may or may not like it can go out there and lobby to change the laws that you can. do not like. “

“I point out that I shouldn’t because they told me I shouldn’t,” she said, referring to the practice of judges refraining from commenting outside of court on them. cases before them.

“But the point is, there will be a lot of things you don’t like,” she said.

CNN’s Ariane de Vogue also reported on the event:

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

Earlier this month, Sotomayor wrote a scathing opinion when a majority in court allowed the Texas law to go into effect, calling the action “superb.”

“You know, I can’t change the law in Texas,” Sotomayor said Wednesday, “but you can and anyone who may or may not like it can go out there and lobby to change the laws that you don’t. not like. “

Justice was then surprised to speak of a contentious case currently before the court.

“I point it out when I shouldn’t because they tell me I shouldn’t,” she said. “But what I’m saying is there’s going to be a lot of things you don’t like” and the audience can change.

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

As I read it, Judge Sotomayor urged those present who oppose SB 8 to push to repeal SB 8. But then she stopped, acknowledging that she had gone too far. The sentence, as it is quoted, is difficult to follow: “I point it out when I shouldn’t because they tell I shouldn’t. “Who is ‘they’? Has anyone in the room motioned for her to stop? Or has a flag gone off in her head in the middle of it? Did she suddenly remember some ethics advice she had received?

Have the Sotomayor judges crossed the line? I have a few thoughts.

First, it is quite common for judges to write that laws should be changed in a published notice. Perhaps the most famous example of this dynamic is Justice Ginsburg’s appeal to Congress in Ledbetter vs. Goodyear. But these means usually come from public opinion itself. Sotomayor did not make such a call in his Jackson contestation. She called for it in a public speech.

Second, it has become quite common for judges to talk about their opinions, especially their dissent. But Judge Sotomayor did not argue in it Jackson dissenting that SB 8 should be repealed. She argued that the law was unconstitutional. His “lobby” argument.

Third, it is extremely rare for a judge to speak about a case that always waiting for. On September 1, the court refused a stay of Whole woman’s health c. Jackson. But this case is now pending before the Court in full review. The parties have filed a motion for certiorari before judgment. The case is pending. And I know from personal experience that Judge Sotomayor takes this issue seriously.

In 2016, I posted copies of my book Disentangled to all judges. Several have sent me very nice notes in response. Some judges may have read the book on their Kindle. Chief Justice Roberts probably used it to light up. Unfortunately, Judge Sotomayor’s assistant returned the book by post. His letter read:

Judge Sotomayor is grateful to you for sending her a copy of your book, Conflict: Obamacare, religious freedom and executive power. Although the judge appreciates your kind gesture, she is unfortunately not able to accept the documents that relate in any way to pending litigation that may be brought 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 ruled Zubik v. Burwell, and referred the dispute over the contraceptive mandate for further processing. The case I wrote about was no longer pending, but it was possible that the case could come back to court. For a long time I thought Judge Sotomayor’s policy was too cautious, but it made sense.

By Judge Sotomayor’s own standard, his remarks on SB 8 crossed the line. To avoid any semblance of impropriety, she was not even willing to accept a book that dealt with a case that had already been decided. She returned the book to me – with taxpayer-funded postage – lest anyone think my writings influenced her opinion! If she had thrown the book in the trash or on the fireplace, no one would have known. Yet she urged a public hearing of lawyers to lobby against a law, the legality of which is currently before the court. Indeed, Judge Sotomayor’s comments seemed to acknowledge that she had gone too far.

will she recuse herself? Probably not. And does anyone doubt how she will vote in light of her dissent? Yet Judge Sotomayor showed poor judgment here. Asked about a pending case, she should have simply replied, “I cannot comment on a pending case.


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