Below is my column in The Hill on the controversy this month over extrajudicial comments made by Justices Sonia Sotomayor and Elena Kagan. These are only the latest such comments by justices that became distractions during the discussion of pending cases before the Court.
Here is the column:
This month, the crowd at the Smithsonian Museum of African American History and Culture was electrified as a speaker called on the lawyers in the audience to “fight this fight” and declared, “We can’t lose the battles we are facing.”
What was particularly thrilling was that the declaration of an “act of solidarity” was not coming from a Democratic member of Congress or an MSNBC host, but from Associate Supreme Court Justice Sonia Sotomayor.
There was a day when such a speech would have been scandalous for a sitting justice of the Supreme Court. For much of the court’s history, justices avoided public speaking beyond the perfunctory commencement speech or circuit judicial conference. The tradition was that justices would limit comments on major issues to their written opinions, so as to avoid any question of partisanship or bias against litigants. It was considered a cost of being one of nine.
That tradition, however, was shattered in the 20th century by what I once called the “rise of the celebrity justice.” Despite my respect for them, I was critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who seemed to relish appearances before ideologically supportive groups, discussing not only issues that might come before the court, but also making comments in books and speeches on political issues.
The troubling trend has created the impression of justices maintaining constituencies on the left and the right. The adoration and attention can have a corrosive effect on a jurist caught up in the moment. Previously, Sotomayor was criticized when she directly called for political action from young law students to defend abortion rights.
Sotomayor acknowledged, “I am pointing out to that when I shouldn’t because they tell me I shouldn’t.” However, she criticized a recent decision of the court from which she had dissented and chastised her conservative colleagues who “have opted to bury their heads in the sand.” She added, “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.”
Sotomayor’s latest comments came shortly before the hearing in the birthright citizenship case, where the court has been asked to rein in district courts imposing national or universal injunctions against the Trump administration. Sotomayor’s sharp questioning of the solicitor general drew a rare rebuke from Chief Justice John Roberts, who asked if the other justices could be allowed to hear the counsel’s answers.
The hearing also highlighted the public comments of another justice on the very matter before the Court. In 2022, when President Biden faced a fraction of the injunctions imposed against Trump, Justice Elena Kagan publicly condemned the use of universal injunctions in an interview at Northwestern University School of Law. She lashed out at the obvious “forum shopping” to get before favorable courts and said “It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.” She added, “You look at something like that and you think, that can’t be right.”
Now, in the Trump administration, Kagan has a case that can right that wrong by requiring parties to certify a national class action if they want a national injunction. However, Kagan raised some eyebrows by quickly stating that “this case is very different” and then suggesting that there was a need for national injunctions against Trump.
As Solicitor General John Sauer tried to distinguish between the procedural question before the Court from the merits (which have not been fully briefed), Kagan and Sotomayor insisted that the unconstitutionality was clear. Kagan snapped “Every court is ruling against you.”
Kagan’s rationale was as disturbing as her apparent reversal. The merits of the birthright citizenship order are still being briefed in lower courts. Moreover, district courts have reasonably concluded that they are bound by prior Supreme Court decisions. The administration believes that those cases are wrong or wrongly interpreted. Most of us expected the Administration to lose in the lower courts before the issue can be raised with the Supreme Court.
And frankly, it will likely lose on the merits there as well. However, that was not the issue before the justices this week. The issue was whether, as a constitutional matter, district courts can bind an entire nation in resolving a case or must confine relief to the parties before it.
The Trump administration is not arguing that courts can never issue universal injunctions. Rather, it is arguing that one must establish a national class action in order to demand a national injunction from a district court. The process under Rule 23 of the federal rules includes tests for determining whether parties in a given case truly represent the interests of other similarly situated individuals.
Kagan and her liberal colleagues insisted that, even though they were not looking at the merits of the birthright citizenship case, they could take a “peek” at what Trump was trying to do. Kagan suggested that Trump’s birthright citizenship order was clearly unconstitutional and thus may warrant a national injunction even if other controversies might not.
Some of us believe that a court’s authority to issue injunctions should not change based on justices taking a peek ahead at the ultimate merits in a case. Kagan’s comments raised questions of whether an injunction “can’t be right” if a greater percentage of courts disagreed on the merits.
Putting aside how the Supreme Court will rule in the case (which is unclear), the controversy leading into the argument over Kagan’s earlier comments shows the perils of such public speeches. Kagan raised interesting concerns over ending such injunctions, but those points became enmeshed with her prior public positions. Her effort to distinguish the case led to claims that she was spinning a case to conform with her public commentary.
Sotomayor and Kagan have made many speeches that have uplifting messages for law students and lawyers alike, including some of the comments in these events. They are both worthy role models for all lawyers. However, these public comments are not a model for jurists, in my view. The controversies this week are only the latest examples of the costs to the court itself in justices holding forth on political subjects or issues that may come before them.
During the week of these controversies, another figure, retired Justice David Souter, passed away. One of the things I most respected in Souter was not only his modesty and civility but his reticence in making public comments. He spoke through his opinions and left the rest for others to debate.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School where he teaches a course on the Supreme Court and the Constitution.
Kagan was concerned about these injunctions under Biden but she is not under Trump. She wants to make distinctions based on her perception of the clarity of unconstitutionality. This is unworkable.
The right solution is class action and/or rapid review.
In this case, the Court could reject nationwide injunctions but preserve the result, by holding that a national scope is necessary here to prevent the pecuniary injury alleged by the plaintiff states.
Based on the oral arguments and questions from the justices, I doubt that birthright will be resolved by SCOTUS. It will take Congress or a constitutional amendment. The matter deserves a full debate on previously proposed options (e.g., one parent must be a citizen) as well as any new ideas that emerge.
Women! Can’t live with ’em………..Pass the beer nuts! (courtesy of Cheers)
I think it’s actually still scandalous.
Watching Kagan, who isn’t as bad as her two liberal sisters on the Court, try to spin her obvious ends justified opinion on injunctions is pathetic.
Please tell me one time where one of the three liberal Justices, unlike their more conservative counterparts, voted against a liberal position due to it being obviously unconstitutional. As an example can anyone point to a liberal vote analogous to Scalia voting to allow flag burning because it falls under freedom of speech?
Liberals, Democrats and the media included, never stray from the company line.
The liberals voted against the Colorado SC in the case stripping Trump from the ballot. Jackson voted with the majority in the case holding that the Enron law was abused in the J6 prosecutions. There are probably others.
That is a good example Daniel, albeit in a very hard to dissent case. But I give you that one.
I would prefer that Justices stay quiet outside of the court. I was very appreciative of the brilliance of Antonin Scalia but I did not agree with him speaking out. Or RBG doing the same. They are there for their decisions and they should restrict themselves to that limitation. Every time they speak out from a political point of view or to fight for a particular political slant then they have basically prejudged subsequent cases. Also an intemperate remark outside of the chambers may lock you in to a particular path, that over time you may wish to deviate from. People and Judges may change their mind. Limiting their extrajudicial comments may give them more leeway to change.
The President and Congress are the political branches and the judges are not supposed to be political. If they want to be political then we need to limit their time on the Court to 10 15 years and then off. We have term limits for presidents, governors and state courts. Maybe it’s time for term limits in Congress and the Federal Courts.
Also I don’t think anyone should be named to the Supreme Court who has not been a Federal Appeals Court Judge or a member of a state Supreme Court. I don’t like on the job training for Supreme Court Justices. We need a track record of their decisions and reversals.
Kagan, Sotomayor, Jackson and Barret should not be on the Supreme Court. They are unqualified. Whoever recommended Barret to Trump is a FOOL. Supreme Court Justices should remain quiet on subjects before the court or may work its way up. When they speak in public it should be they should discuss only general items
Not quite. Amy was superior in every way to the 3 worthless broads as I consistently label them. Amy has been thoroughly cowed by the continuous death threats against her children and husband. Look up the reports. She has tied to be fair and impartial but each time she rules against the traitors they hit her where it hurts. I believe that she should step down and let Trump put a man with a steel spine in her place. And, no, that’s not sexist it’s reality. The 3 worthless broads have never been subjected to that kind of pressure from our side because we’re too nice.
This is off-topic to a large degree, but does anyone else out there notice that former Supreme Court justice David Souter has a remarkable resemblance to an “aged“ David Hogg…. 😳😉
Not bad.
Our nation is dying from immoral and illogical cancer! I am seventy-four and whether living are not my heart is greatly sad.
Kagan telegraphs the ruminations within the private SCOTUS meetings. When all is according to her wishes, she remains judicial – that is silent. When not going well, she goes public, trying to influence the court from without. It’s almost juvenile-type behavior.
July 4 we celebrate 250 years of We The People. That 250 years has seen us look to SCOTUS to pronounce the law of the land as it exists at time of decision. It’s not an accident that during those 250 years the Justices have predominantly understood that speaking what the law of the land is only from the bench, including concurrences and dissents, is what gets us to the years that follow 250.
Mike Gilmore
Actually, July 4, 2026 is the 250th anniversary of “We the People”, if you are referring to Independence Day.
The only 250th anniversaries this year are April 19th, and June 14th.
April 19th 1775, was the day of the “shot heard around the world”, being the day of the first battles of the Revolutionary War at Lexington and Concord.
June 14th, 1775 is the day the Second Continental Congress authorized the formation of the Continental Army, which is now regarded as the official birthday of the United States Army. It is also Trump’s birthday and the day he wants his stupid parade.
You are playing fast and loose with the facts.
Typical MAGA cult behavior.
Just make stuff up to suit your stupid beliefs and prejudices.
If SCOTUS is going to be red or blue, we need to begin to vote for them. What a horrible concept!
Republicans stop fooling around…REMOVE THEM!
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. — US Constitution
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In my opinion “[G]ood Behaviour” should include “Stay politically neutral.”
The Court was to transcend the political winds and not be responsive to current topics at issue between politically aligned groups.
Taking a side in politics is beneath the dignity of the court and must be quashed.
Kagan should know better, and would be a competent municipal judge if she had not been elected beyond her skill set. We expect Sotomayor to say stupid things, because she is amazingly stupid.
Kagan was never a judge
I agree with the Professor on everything he says as well, including the comments about the merits of the birthright citizenship issue. The Court will likely affirm the lower courts in allowing birthright citizenship even for the babies of illegal aliens and tourists–i.e., “anchor babies”. But there is significant legal scholarship that I assume will be briefed when the time comes that makes it pretty clear that the legislative history of the 14th Amendment shows that was NOT the intention of the people who wrote and passed that amendment. There is a recent article by Amy Swearer that is very persuasive on that. Can anyone reasonably defend the proposition that a woman who crosses our border illegally for a few hours can produce a child with US citizenship? Or that a tourist who is here legally but only temporarily can do the same? That is madness. I also point out that none of the materials I have read on this subject address the last 7 words in that sentence from the 14th Amendment “. . . .and of the State wherein they reside.” That, to me, can only mean that those “persons” granted citizenship by the preceding words of that sentence must have been “residents” (domiciliaries) of a US State at the time of birth, and since persons here only temporarily (or illegally) cannot be legal “residents” of any State the Amendment does not apply to them. Why more is not made of these 7 words is a mystery to me.
Obviously, Justice Sotomayor has already made up her mind and is probably already drafting the majority opinion on the merits of this issue, and surely she will be joined by Justices Jackson and Kagan, but I hope that the other 6 Justices will give a fair reading to the legislative history and to the very words of the 14th Amendment.
I don’t think a SCOTUS majority will strip the Citizenship Clause of both its historical meaning at the time of ratification AND the exceptions implied by “jurisdiction”.
Nothing could discredit the highest Court in the People’s eyes as much as upholding the legality of foreign criminal organizations selling US Citizenships abroad for $50-100K.
I know Democrats in Congress are counting on SCOTUS to decide policy in this area, but I believe SCOTUS will reject this skirting of Congressional responsibility. Justice Sotomayor was heard to say in Thursday’s hearing that Congress is the place where any ambiguities in citizenship eligibility should be decided. That implies the even she doesn’t want the Courts to be dictating citizenship policy.
If we could raise those who passed the amendment from the dead, there would be no ambiguity. If Congress wants birthright citizenship, Congress can make sure it passes such a bill. The ambiguities were created by the Court, which took over legislative responsibilities.
Thank you for your detailed comment which clearly summarizes the totally absurd notion of birthright citizenship and the subsequent consequences of the anchor baby allowing more family members being imported. The 14th amendment basically reversed the horrible Dred Scott decision. Having allowed birthright citizenship for the past 100+ years is insane. This should have been settled decades ago!
I’m still left wondering if abond was posted as required by statute as has been onitted in the recent past!
Democrats core principle is hypocriticalism!
No suggestion that Alito and Thomas should be quiet. Mr. Free Speech seems to only want to suppress one point of view.
It’s the girls that are shooting their mouths, enigmain.
Can you point to public statements outside of official SCOTUS forums by either of these Justices that state clear political opinions? You may be referring to their comments from the bench or their written opinions, which are not what Turley is referring to. Alito and Thomas clearly do have legal opinions associated with conservative political thinking but do not confuse either type of opinion or the forum in which any such opinion is expressed, which is what you may be doing.
Enigma won’t give examples because there are none. His next step will be to throw in the opinions of their wives.
https://www.nbcnews.com/politics/supreme-court/justice-alito-warns-declining-support-freedom-speech-college-campuses-rcna151817
https://www.wabe.org/justice-thomas-judges-must-uphold-law-even-when-unpopular/
Turley went back to 2022 to quote Sotomayor. He made a passing mention of Scalia who was a regular at shooting off his mouth. Thomas was more likely to go to secretive meetings hosted by his multi-billionaire friends who financed his lifestyle.
Where do you see those two justices making speeches similar to the liberal women?
Unfortunately it is not an impression but a fact that SC Justices are bias and vote their ideology. It is past time to take away lifetime positions and to charge misconduct and bias where it rears its head allowing thise judges to be removed.
Amen to everything Turley wrote in this article.