Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice

ONE

Life of the Party

This party celebrating the end of the Supreme Court’s annual term is an exclusive affair that bears all the trappings of a staid, cultured institution and its privileged occupants. Festivities are staged in two majestic rooms that face each other across a red-carpeted hallway. Oil portraits of the nation’s chief justices, all men in dark formal garb, line the oak-paneled walls. Crystal chandeliers hang from the high, gold-glazed ceilings. The large elegant room on the east side of the corridor holds a gleaming grand piano. This is where the entertainment takes place. Across the hall, food and drink are laid out on silver trays and white linen–covered tables. As the end-of-term party for June 2010 was approaching, Chief Justice John G. Roberts, Jr., sent invitations to the staff. He mentioned the customary platters of hors d’oeuvres that would be offered and the law clerks’ musical parodies that would be presented. He also reminded invitees that the party was open only to full-time Court employees, not to part-time workers, interns, or contractors—another sign of the special nature of this event at this elite place.

Justice Sonia Sotomayor, a Bronx-born Puerto Rican, was about to attend her first such party. The nation’s first Hispanic justice had joined the Supreme Court the previous August, a 2009 appointee of the nation’s first African American president.*

Sotomayor had already shown herself to be a different kind of justice. She was more social than the others, kicking up her heels at parties that made the gossip columns. When she danced with actor Esai Morales at a National Hispanic Foundation for the Arts gala, pictures of her in a shiny black jacket and pants went viral; ditto when she donned a New York Yankees jersey and threw out a first pitch for her adored home team. She reveled in the attention.

A few weeks earlier, in June 2010, she had returned to the Bronx as the guest of New York City officials who had renamed the housing project where she grew up. The Bronxdale Houses had become the Justice Sonia Sotomayor Houses.1 As she stood before three hundred cheering people, Sotomayor recalled how hopeful the Bronxdale Houses had seemed in the late 1950s when she moved there from a run-down tenement. Mayor Michael Bloomberg called her an inspiration to millions of New Yorkers. Later she sang and danced onstage with the choir from her high school. Wearing a bright red jacket, she was loose, at ease, seemingly all confidence.

Now she was back at the Supreme Court for the culmination of her first term and the end-of-term party.2 After the justices and staff heaped their plates with food, they took seats for the entertainment. Sotomayor sat near the front. So did Justice Ruth Bader Ginsburg, whose husband, Martin, had died three days earlier after a long illness. Ginsburg, a survivor of two serious bouts with cancer, had prided herself on not missing a single day of Court business during her husband’s illness. She was exhausted but not about to skip this celebration. Her close friend Justice Antonin Scalia, always an easy target in the law clerks’ parodies because of his exaggerated mannerisms, secured a spot along a back wall of the room. As the rows of wooden chairs quickly filled, other people began to line the walls, too. About two hundred employees crowded in.

Chief Justice Roberts began the festivities with a Jeopardy-like trivia contest. The three-clerk teams, named Life, Liberty, and the Pursuit of Happiness, fielded his queries as an aide kept score on a whiteboard. Next, the musical spoofs began. Law clerks—the young, mostly Ivy League–trained attorneys who assist the Court—assumed the roles of the nine justices and poked fun at their foibles. The clerks kept these parodies tame. Certain expectations of decorum permeated the Marble Palace, as it has been called. Precedent and consistency were valued in the justices’ relationships as well as in the law.

Justice Sotomayor was about to upset those expectations. As the skits were ending, she sprang from her chair, turned to the law clerks, and declared that although their musical numbers were all fine enough, they lacked a certain something. With that, a law clerk cued salsa music on a small portable player, and Sotomayor began dancing. She took quick steps forward, then back, and turned, then went forward, back again. The Cuban- and Puerto Rican–inspired rhythms were as new to this setting as the justice who was dancing. For her salsa partners, Sotomayor first grabbed a few law clerks, who, it became clear, had arranged this diversion with her. Then she beckoned the justices, starting with Chief Justice Roberts. A buttoned-down man who rarely shed his suit jacket at the Court, Roberts was reluctant, looking terribly uncomfortable. The audience was apprehensive. By tradition, this was an event where the law clerks performed and the justices watched. Roberts decided to be a good sport. He got up and danced with her. Briefly.

Sotomayor’s barrel-ahead style clashed with the usual order and predictability at the Supreme Court. The institution operates on a down-to-the-minute schedule. Everyone knows his or her place, which corridors are open, which are closed. Steady, quiet rhythms control, for better or worse, reflecting the ideal of consistency in the law. But now a justice was dancing salsa in a room where portraits of former chief justices set the stodgy tone. Sotomayor’s hips swayed to the beat of the distinctive drums and horns, and as her thick, curly black hair fell into her face, she brushed it away with her hand.

As she sought out partners, nervous colleagues danced a bit, one by one, then retreated to their chairs. Justice Anthony Kennedy, six foot two and favoring dark suits with coordinated tie and pocket handkerchief, did a jitterbug-style move. Justice John Paul Stevens, at age ninety the eldest, got up, too, but he felt as if he had two left feet and quickly sat down, happy to watch Sotomayor move on to other partners.

“Where’s Nino?” she shouted toward the back. Scalia, his thinning black hair slicked back, started to shake his head. There was no way he was going to dance. But then he did, sort of. Justice Samuel Alito, tall and shy, looked even more awkward when Sotomayor got to him. He resisted. But the rest of the audience was into the spectacle now. People were standing up, laughing and whooping. So Alito stood and danced a little bit. Then Sotomayor went toward Ginsburg, who had just endured some of the most difficult days of her life. She did not want to rise from her chair, but Sotomayor whispered to her that her late husband would have wanted her to dance. Ginsburg relented and followed Sotomayor in a few steps. Ginsburg put her hands up to Sotomayor’s face. Holding her two cheeks in her palms, Ginsburg said, “Thank you.”

As the program closed and people began leaving the room, emotions were strong. It had been a difficult term, and Sotomayor’s enthusiasm was catching. Scalia, who could shake things up in his own way, joked as people passed him near the doorway, saying, “I knew she’d be trouble.”

But some people were not as amused, and the episode increased their skepticism of Justice Sotomayor. They thought she was calling too much attention to herself, revealing a self-regard that challenged more than the Court’s decorum. One justice and one top court officer said separately that it was just too much blurring of the lines between the clerks, who traditionally took the stage at the party, and the justices, who sat in judgment in the audience.

But that was Sotomayor. She had spent a lifetime challenging boundaries and disrupting the norm. And this episode as she was ending her first term testified to why it was she who became the historic first at the Supreme Court.3 She was not one to wait her turn. If she had waited, or held herself back at crucial junctures, she would not have been there. And once there, she believed it should be in her own hands to define her presence. Before this first end-of-term party, in fact, she had lined up a book agent and begun negotiating a publishing contract to write her autobiography.4

This book tells a different story. Rather than biography, it examines the cultural and political shifts that merged with Sotomayor’s life and led to her appointment. It is a tale of how the timing of her generation helped lift up the daughter of a nurse and factory worker. While Hispanics were emerging as a political force in America, Sotomayor was overcoming her own hurdles and walking the narrow line between identity and assimilation. She had the intelligence and perseverance to do what no other Hispanic had done.

A child of housing projects who graduated from Princeton University and Yale Law School, Sotomayor, through her life story, tracked the ascent of Latinos in America, with their growing numbers and influence.5 She was born in 1954, the year of Brown v. Board of Education, which ended the doctrine of “separate but equal” and opened schools to blacks and Hispanics. It was also the year of Hernandez v. Texas, which marked the first time the Supreme Court held that the Constitution protected Hispanics from discrimination with the same force as it protected blacks.

Sotomayor’s formative years in the 1960s and 1970s coincided with the civil rights efforts of Puerto Ricans and other Latinos. Her life and career paralleled the activism and progress of her people. She went from a timid schoolgirl who kept her head down to an assertive woman who learned to maneuver in a predominantly white male world, gaining admission to Princeton and Yale partly through racial and ethnic preferences. “I am the perfect affirmative action baby,” she said early in her career.6 Once she became a lawyer and set her sights on the federal judiciary, she won lower court nominations, in part, because of her ethnicity, and she was approved only after close calls and fortuitous timing. Patrons such as Senator Daniel Patrick Moynihan, who amassed and wisely used his political cards, played a recurring role in her story. Those connections and her own savvy helped her navigate a system known for ravaging nominees, especially when race or ethnicity was an element of the nomination.

Sotomayor watched in the 1990s and early 2000s as advocacy groups tried to position other lawyers to be the first Hispanic on the Supreme Court. Among them were federal judge José Cabranes, who was born in Puerto Rico and came to the mainland with his family at age five, and Washington lawyer Miguel Estrada, a Honduran who immigrated as a teenager. Only after they and others fell out of contention because of the politics of the day did Sotomayor represent an obvious choice when President Barack Obama—whose own 2008 victory went against the odds—sought to choose the first Hispanic justice.

Yet Obama’s choice for the Supreme Court might not have been this Puerto Rican daughter of the Bronx. One of his mentors from his Harvard Law School days was against it. “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the firepower of the [conservative] wing of the Court,” wrote Harvard law professor Laurence Tribe, an important liberal voice in American jurisprudence.7 Tribe, who later altered his opinion of Sotomayor, had been Obama’s professor at Harvard and an early supporter of his bid for the presidency.

Obama himself was ambivalent as he faced the 2009 vacancy after the retirement of Justice David Souter. Obama saw the political value, certainly, of naming the first Hispanic justice. But the man who, as a student, had held the top editorship on the Harvard Law Review and then taught at the University of Chicago Law School had his own elite interests. He was attracted to other candidates he knew from Chicago’s academic enclave of Hyde Park. His preliminary list, right after the 2008 election, was topped by three names: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit who lectured at the University of Chicago; Cass Sunstein, a Harvard law professor who earlier had taught at the University of Chicago; and Elena Kagan, a former University of Chicago professor who had become dean of Harvard Law School.8

Sotomayor’s inclusion on Obama’s expanded list arose from her education, experience, and connections, as well as the diversity she would offer. Her appointment might perhaps be compared to that of the first African American justice, Thurgood Marshall, the civil rights giant who developed the strategy leading up to Brown v. Board of Education. President Lyndon B. Johnson had chosen Marshall in 1967 as part of the president’s broader civil rights efforts. Johnson, who had been the force behind the 1964 Civil Rights Act and the 1965 Voting Rights Act, sensed that public attitudes about race were changing. His nomination of Marshall was a principled move, to be sure, yet not one without political calculation.9

But any comparison between Marshall, a first-generation civil rights advocate, and Sotomayor, heir to the Latino pioneers who came earlier, goes only so far. What’s more, while Johnson was on the cutting edge, Obama’s choice of the first Latina felt overdue. For years, decades even, presidential candidates had been vowing to appoint a Hispanic justice. In 2009, when it finally happened, Hispanics represented 16 percent of the United States population. During the 2000s, the Hispanic population grew four times faster than the overall U.S. population.10

Opposition to Sotomayor at the time of her nomination came not in the form of the outright racism that Southern senators had shown Marshall in 1967, but in the subtle bias of commentators that she was not up to the job. Such criticism portrayed her as an intellectually inferior jurist and offered a narrative that competed with her personal story of success. She would later say, “It was very, very painful both on the court of appeals and on the Supreme Court nomination process that people kept accusing me of not being smart enough. Now, could someone explain to me, other than that I’m Hispanic, why that would be?”11

Such bluntness separated Sotomayor from others who jockeyed for position in the nation’s capital. She spoke candidly of cultivating the necessary skills, building the networks, and overcoming personal setbacks. Her Supreme Court appointment was the culmination of an ambition stoked early on. In law school, she said, she realized the role individual judges could play in social justice—to protect voting rights or reduce segregation. “The idea that a single person could make such a difference in the cause of justice was nothing less than electrifying,” Sotomayor wrote in her memoir, “and having more or less accepted the primacy of career in my life, I saw no reason to stint on ambition.”12

Having achieved appointments to lower federal courts in the 1990s, she was careful to avoid controversy and continued to build alliances. She also did not tamp down her heritage or personality. She was not someone who “happened” to be Puerto Rican. She talked of eating such island specialties as pig intestines. And when it came time for her to administer her regular shot of insulin to care for her diabetes, she did not retreat to the ladies’ room. Even at fancy dinners she took out the kit she always carried and injected herself at the table. Her unvarnished approach sometimes discombobulated associates, but it also conveyed an authenticity, even a vulnerability, that drew people to her.

In her early years at the Supreme Court, she elicited intense admiration alternating with annoyance for her garrulous, forceful style. She was a different model at an institution where justices, as a group, have been relatively bland and socially conforming, even as they differed radically on the law. What passed for flamboyance at the Court would generate a yawn in other venues. When Roberts’s predecessor as chief justice, William Rehnquist, put gold stripes on the sleeves of his black robe in 1995, mimicking a character from Gilbert and Sullivan, it made national news.13

What follows is, first, a story of fortuitous timing and alignment with national events for a woman who was determined—as seen at her first Supreme Court end-of-term party—to stand out. Her ethnic identity helped her get ahead, but only after she surmounted hurdles that stopped most of her Latina cohort and, in point of fact, stopped almost everyone else seeking great stature in the judiciary.

Sotomayor’s voice has been heard in a memoir that has earned her millions of dollars and sold hundreds of thousands of copies. She connects with people beyond the Washington Beltway as no other justice has. People reach out to hug her. She is a magnet, especially, for children. When Pew Research polled Hispanics on community leaders in 2013, Sotomayor and U.S. senator Marco Rubio, a Florida Republican, topped the list of those named.14

She attests to the dreams and aspirations of America. It is in the national fiber to believe someone can come from nothing, work hard, and become something. But Sotomayor’s rise has not been without adverse reactions. The justice appointed for life still has her doubters, and it remains to be seen how she will answer them over time. She has played up her ethnicity and celebrity status as a “first,” in contrast to the man who put her where she is today. President Obama rarely gives voice to his experience as the child of a black father and a white mother, and in political Washington, only on the most exceptional occasions does he speak about race in a personal way.15

This book offers an early look at how Sotomayor is publicly defining herself and compares her with other groundbreaking justices and her contemporary colleagues. The contrast with Elena Kagan, President Obama’s second appointee, offers one measure. Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts—a judge who has the “potential to persuade” conservative colleagues.16 Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

As she challenges presumptions about how justices act and enlarges their place in the American mind, it may be that the personal characteristics that propelled her to this moment in history prevent her from being most effective. It is not clear that the popularity she has achieved outside the Court can be matched by a persuasive ability within its marble walls.

She has begun to make her mark, primarily by seeking fairer procedures for criminal defendants. Her writings reflect the knowledge earned in a big-city prosecutor’s office and years presiding over trials, as well as the more personal experience of being a Latina.

As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

When she asked them to dance, they did. On the law, they may be less likely to follow.

Copyright © 2014 by Joan Biskupic