Justice Sonia Sotomayor has previously been criticized for making public comments that some viewed as overly political or partisan, including telling law students to organize in favor of abortion rights. This week, the Justice has triggered another controversy in calling for lawyers to “fight this fight,” presumably against the Trump Administration.In comments to a section of the American Bar Association at the Smithsonian Museum of African American History & Culture, Justice Sotomayor made a number of inspiring comments to encourage lawyers to pursue justice despite the odds or challenges: “If you’re not used to fighting, and losing battles, then don’t become a lawyer. Our job is to stand up for people who can’t do it themselves.”
However, her comments then appeared to veer into more partisan territory regarding the current challenges against the Trump Administration. She declared, “Right now, we can’t lose the battles we are facing.”
The “we” left many surprised and concerned that the jurist was rallying the left as a type of constituency. She declared “We need trained and passionate and committed lawyers to fight this fight. For me, being here with you is an act of solidarity.”
Clearly, such comments are subject to different interpretations. Newspapers like the New York Times made the obvious connection, stating that it was made “against the backdrop of immense stress on lawyers and the legal system from the Trump administration.”
The message was not lost on activists who heralded “Justice Sotomayor’s support for the aggressive pro-democracy movement is so important at this critical time.” Court-sanctioned lawyer and Democratic activist Marc Elias added, “She understands that while we must bring difficult cases and be willing to lose, we must always fight to win. And by lending her voice in ‘solidarity,’ she affirmed that it is ‘our time to stand up and be heard.’”
The comments seemed to be spurring the left to action as she did earlier with law students when she turned to the court decision not to intervene in the Texas abortion case. Sotomayor wrote a heated dissent in Whole Woman’s 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.”
I admittedly hold a more traditional and cloistered view of the public role of justices. I was particularly critical of the late Justice Antonin Scalia and Justice Ginsburg, who relished appearances before ideologically supportive groups. In my view, other justices like Justice Samuel Alito also crossed this line of judicial decorum and restraint. 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.”
The comments also come after calls from the left for Sotomayor to resign while Joe Biden was still president. I thought such calls were insulting and unfair to the Justice.
I felt that Justice Sotomayor’s comments this week were poignant and motivating. However, calls to “fight this fight” in the current atmosphere were injudicious. The Court is set to hear a number of key cases on the Trump policies, including a key argument next week on the rapidly expanding number of national injunctions imposed by district courts. This is not the time to be seen as speaking in “solidarity” with one side.