As politicians like Sen. Elizabeth Warren push for packing the Court with a liberal majority, Justice Sonia Sotomayor publicly refuted accounts that the Court is hopelessly and dysfunctionally divided along political lines. The justice used an appearance on “Live with Kelly and Ryan” to tell the public that it should not misconstrue divisions on the Court because these questions are far from clear on the law and “reasonable people can disagree.” The remarks followed a joint statement by Justice Sonia Sotomayor and her colleague Justice Neil Gorsuch to debunk a NPR story by Nina Totenberg and publicly acknowledge their friendship.
Justice Sotomayor addressed “the biggest misconception people have” about the Court in rendering its decisions.
“Most people think of the law as black and white, that there’s an answer. But the reality is, there isn’t a clear answer. Most of the time when the Supreme Court takes cases, it’s because the courts below that are disagreeing about the answer. By the time the case comes to the Supreme Court, or to any court, actually — the courts below us or even the Supreme Court — it’s because the answer’s unclear. And that can be unsatisfying to people. They don’t understand why the judges are disagreeing. They don’t understand why it’s so hard…So that, I think, that will give people some solace when they feel the courts made a wrong decision — understanding that the answers are not as easy to come to as they may want.”
When asked about the falling trust in the Court by some people, Sotomayor acknowledged that all of the justices are concerned about that problem:
“We think about ways in which we can comport ourselves, among ourselves to ensure that the public has confidence in what we’re doing. I do need to discuss this a little bit with the public to assure them that one of the hardest things about our work is that there are no easy answers. Reasonable people can disagree.”
That is hardly the talking point that advocacy groups like Demand Justice and many commentators want to hear from one of the Court’s most liberal members. There has been a steady drumbeat in the media that the Court is being controlled by rigidly partisan conservatives and that there is no alternative to packing the Court with an immediate liberal majority.
Indeed, Sen. Warren recently explained that the Court had to be packed to bring its rulings in line with “widely held public opinion.” Others have insisted that the Court is now ruling so far outside of the law that court packing is the only response to such an attack on the rule of law. Figures like Harvard Professor Laurence Tribe declared after the election that “the time is overdue for a seriously considered plan of action from those of us who believe McConnell and Republicans, abetted by and abetting the Trump movement, have prioritized expansion of their own power over the safeguarding of our American democracy and the protection of the most vulnerable who are among us.” (President Joe Biden later put court-packing advocates like Tribe on his Commission on the Supreme Court).
Others like Erwin Chemerinsky, dean of the UC Berkeley School of Law, have called the conservative justices “partisan hacks.”
Sotomayor is only the latest to sound a dissenting note for those portraying the Court as hopelessly partisan.
When asked about calls to expand the Court, the late Ruth Bader Ginsburg said it would destroy the continuity and cohesion of the Court. She added: “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
Liberal Justice Stephen Breyer chaffed at the claim that this is a “conservative” court and noted “The chief justice frequently speaks on this subject as well and says, no, no: we don’t look at our rulings from the point of view of our personal ideology.”
Justice Thomas criticized those who seem intent on diminishing the authority or respect for the Court: “the media makes it sound as though you are just always going right to your personal preference…They think you become like a politician. That’s a problem. You’re going to jeopardize any faith in the legal institutions.”
Justice Amy Coney Barrett recently told an audience that “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
Chief Justice John Roberts recently criticized “inappropriate political influence” on the Court.
It is not clear if Sotomayor will now get the same treatment as Breyer who defended the Court. Breyer was swiftly denounced by figures like cable news host Mehdi Hasan who called him “naive” and called for his retirement. Demand Justice, a liberal group calling for court packing, had a billboard truck the next day in the streets of Washington warning “Breyer, retire. Don’t risk your legacy.”
In the age of rage, reasonable people cannot disagree. According to politicians like Sen. Sheldon Whitehouse, the conservatives are partisans when they vote together while the liberals voting together are paragons of the rule of law. The Court must be hopelessly partisan to justify the most partisan act of court packing. Yet, it now appears that even the most liberal members of the Court are part of the “naive” and reactionary forces standing in the way of “true reform.”