Disagree in Good Faith?

Sonia Sotomayor pushes other Supreme Court justices past their comfort zones.

Supreme Court Justice Sonia Sotomayor speaks during a ribbon-cutting ceremony at George Washington University's Jacob Burns Community Legal Clinics on Jan. 23, 2014, in Washington, D.C.
Supreme Court Justice Sonia Sotomayor speaks during a ribbon-cutting ceremony at George Washington University’s Jacob Burns Community Legal Clinics on Jan. 23, 2014.

Photo by Brendan Smialowski/AFP/Getty images.

Joan Biskupic’s new biography of Sonia Sotomayor, Breaking In, opens with a telling story from the justice’s first year on the Supreme Court. At a party celebrating the end of the term, Sotomayor decided to shake up the staid affair. After the law clerks put on a series of “tame” skits, she informed them that their performance “lacked a certain something.” She signaled a clerk, who produced a stereo. When Latin music began filling the room, before the clerks, her colleagues, and 200 staff members, the newest member of the court began to salsa.

That would certainly have been enough to make the occasion memorable, but Sotomayor wasn’t done. One by one, Biskupic writes, “she beckoned the justices” to join her. They were resistant, she was determined. “I knew she’d be trouble,” Justice Antonin Scalia quipped when the dance off was over.

If Sotomayor seems comfortable putting her colleagues through the paces, that may be because she has a penchant for pushing herself. This past weekend, at a reunion event for Yale Law School, she revealed that, when it comes to dancing, she’s hardly a natural. “I can’t keep a beat to save my life,” she admitted. That fact kept her away from dance floors for most of her life until she finally decided, “This is something I want to change.”

And so Sotomayor signed up for salsa lessons. She was 50 at the time and a newly minted member of the 2nd Circuit Court of Appeals.

Fumbling across the dance floor may seem inappropriate for a judge, a figure we tend to think of as a kind of mental Fred Astaire, threading complex legal conundrums and glibly dispensing justice, all without breaking a sweat. Sotomayor is familiar with that image, but it’s one she thinks we would do well to discard. At the annual gathering of the American Constitution Society in June, she lamented the “public deference” that is constantly paid a Supreme Court justice. Being catered to, accommodated, and honored wherever one goes may do much for the ego, but it radically narrows the variety of one’s experience, while gilding the little that one actually knows.

Variety, of course, is the defining quality of Sotomayor’s life, a journey that has taken her from a childhood in Bronx public housing to a perch on the highest court in the land. As she explained in her ACS talk, notwithstanding the robe she wears, Sotomayor has never forgotten what it means to live in a neighborhood where you can’t ride your bike for fear of having it swiped out from under you or the pain of being teased by wealthier classmates when your mother can’t afford to replace “ratty” tennis shoes.

Such heightened sensitivity to the experience of disadvantage—shame, powerlessness, patent disregard—has shaped Sotomayor’s approach to a wide array of issues, from restrictive voting laws and criminal procedure to tribal disputes. It has dedicated her to a probing sense of judicial solicitude, the commitment to which she hardly exempts her colleagues.

Take her dissent in Schuette v. BAMN, the contentious 2013 affirmative action case upholding a Michigan referendum banning affirmative action at public universities. It is best remembered for her sharp reply to Chief Justice John Roberts’ brisk pronouncement in an earlier case, 2007’s Parents Involved, on how best to end racial discrimination: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That assertion struck many as something of a bloodless syllogism, more a rhetorical flourish than a patent reflection of reality. In Schuette, Sotomayor provided a full-throated reply. “Race matters,” she said:

[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?” regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

At first glance, the implications of Sotomayor’s digression seem pretty straightforward: The majority justices don’t understand what it’s like to be part of a group disadvantaged by the ruling, for if they did, they would not have allowed the results to stand. That contention seems to rest on a bold assumption about the conclusions we draw from experience, namely, that the experience we gain firsthand, or that which we derive from others by way of empathy, exerts a kind of gravitational pull toward moral certainty.

Roberts replied to Sotomayor’s Schuette dissent in a terse, two-page concurrence he wrote primarily to reject her characterization of his views on racial discrimination: “People can disagree in good faith on this issue.” His reply seems not only fair-minded, but consistent with, if not consequent to, his colleague’s views on the desirability of a variety of life experience on the court. I don’t think Sotomayor would disagree, but I suspect she also would draw our attention to the qualifier: in good faith.

When we use the words in good faith to describe a difference of opinion, we do so to suggest that the belief of either party is sincerely held rather than the reflex of abiding malice. But when it comes to disagreements that turn on the implications of some experience two people don’t share, in good faith can mean something more.

Consider how Sotomayor described in her ACS talk the experience of meeting with school children. Making a connection with them, she said, required more than speaking at them or even asking a question or two. “I try to sit where they’re sitting and look at myself through their eyes,” she said. That effort requires not only that she draw on her own experience as a child—“when I do that, I can remember how I felt when I was their age”—but to harness her capacity for empathy to understand the special challenges they face. “I try with each group of kids to have a sense of what’s important to them, what is it that they have fears about, concerns about, anxieties about, and to talk to them openly about that.”

Such efforts are no small thing. As Sotomayor said in a lecture at Berkeley in 2001, “to understand takes time and effort, something that not all people are willing to give.  For others, their experiences limit their ability to understand the experiences of others. Others simply do not care.” Understanding people who lead very different lives from you is exceedingly difficult, yet this is all the more reason why it is essential for a judge to make a conscious commitment to understanding the lived experience of the parties before her. Doing so is inevitably a challenge, but it is impossible if one doesn’t bother to try.

This is the implicit rebuke Sotomayor offers in her Schuette dissent: empathic laziness.  When she takes up Roberts’ conclusive statement on racial discrimination, she forces skeptical readers, her colleagues included, to stop for a moment and think about what it means to be the victim of racial discrimination. The aching examples she provides try to establish the baseline experience necessary for a “good faith” debate on race. No doubt she appreciates that understanding the experience of racial discrimination will not invariably lead a justice to favor certain outcomes in cases like Schuette (Justice Clarence Thomas, who voted with the majority, is sufficient evidence of this) but it keeps him from arriving at conclusions that, either from ignorance or arrogance, fail to take seriously the lives of those most affected by his decisions. 

“We have to sort of correct each other from misimpressions,” Sotomayor has said of her colleagues. After five years on the court, it’s obvious that she hardly shrinks from the challenge. The other justices have taken note. Two of them, Thomas and Justice Samuel Alito, joined her over the weekend for the Yale event and listened with bemusement to her story of struggling to master salsa. Turning to them, Sotomayor announced that, though she had not exactly succeeded, her efforts had taught her “a facility” that some of the other members of the court “would find very strange.” Given the right partner, she said, “I can follow.” Justice Alito grinned. “It’s a revelation to me that Sonia likes to follow,” he said. “I think we’re going to start dancing in the conference room.” 

Two left feet take a step in the right direction—even for Sonia Sotomayor that would be a new experience entirely.