Modern justices have long chafed at the restraints of judicial ethical rules about public commentary. The late Ruth Bader Ginsburg was celebrated as “notorious” due in part to her controversial public speeches and discussions of pending or expected cases before the Court. Despite my long criticism of this trend, I was still taken aback by comments of Justice Sonia Sotomayor at an event organized by the American Bar Association. In her comments, Sotomayor appeared to call for political campaigns and discussed a matter just before the Court. Despite the discussion of the case and political opposition from a sitting justice, the ABA members were silent as were the many liberal activists who have been denouncing the Court as too “political.”I admittedly hold a more traditional and cloistered view of public role of justices. I was particularly critical of the late Justice Antonin Scalia and Justice Ginsburg who relished appearances before ideologically supportive groups. Other justices like Justice Samuel Alito also crossed this line of judicial decorum and restraint in my view. We have seen more and more public speaking by justices in both books and speeches on contemporary issues. I have called this trend the “rise of the celebrity justice.” However, what occurred this week was troubling. Justice Sotomayor participated in the event with law students by Zoom. Sotomayor first told the law students to expect a “huge amount” of disappointment in the law and pointed to “my dissents” as evidence of that struggle.
Sotomayor then turned to the recent court decision not to intervene in the Texas abortion case. Sotomayor wrote a heated dissent in Whole Woman Health v. Jackson. After criticizing her colleagues for their “stunning” decision, she called on students to politically oppose the law: “You know, I can’t change Texas’ law 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.” She then added “I am pointing out to that when I shouldn’t because they tell me I shouldn’t. But my point is that there are going to be a lot of things you don’t like” and require public action.”
It was plainly obvious that Justice Sotomayor was encouraging students to politically oppose the law and laws like it. She was already on record in both her dissent and her public comments that she viewed the law as horrific and unacceptable.Not only is the Court scheduled to deal with the Dobbs case this term, Whole Woman Health v. Jackson was only denied a stay. New appeals are working toward the Court. Now that Sotomayor has called for political action and lobbying against the law, there may be calls for her to recuse herself though she is unlikely to do so. What is most striking is how Sotomayor’s words have received praise and virtually no criticism from the left. Professors and writers have been calling for the packing of the Court due to what they describe as a politically active majority on the right of the Court. Here is a justice calling directly for political action to change a law being appealed to the Supreme Court. Yet, there is not a peep of protest from figures like Dean Erwin Chemerinsky that the conservatives on the Court are a bunch of “political hacks.”
I believe that Justice Sotomayor has been a strong addition to the Court and, while I sometimes disagree with her, she has already carved out an influential legacy. I also do not consider her or any of her colleagues a “political hack.” Moreover, I have criticized justices on the left and the right of the Court for public comments. However, this type of commentary undermines the integrity of the Court in dealing with opinions with tremendous impact on all citizens. They have a right to expect justices to speak through their opinions and refrain from such public political remarks, particularly on matters before or coming to the Court.