Breaking In: The Rise of Sonia Sotomayor

by Joan Biskupic

  Justice Sotomayor was ready to put herself on the line. She knew what affirmative action had meant for her and contended it has continuing value in American society. The details of her opinion might not be public for years, if ever. But those who read it said it was a fierce defense of affirmative action and a direct challenge to conservative justices preparing to undercut it.

  Justice Kennedy, to whom the chief justice had assigned the majority opinion, did not close the door to working toward some sort of compromise that would draw as many justices as possible to an opinion. The conservatives themselves were split on how far they would go, and with Thomas advocating complete reversal of Grutter based on his view that no classifications tied to race were allowed under the Constitution’s guarantee of equality, Kennedy lacked the critical five votes for a single rationale. Kennedy also wanted to lower the temperature of the negotiations, intensified by Sotomayor’s dissenting rhetoric.

  Stylistically, the two were opposites. Operating best in a buzz of activity, Sotomayor typed furiously on her computer, constantly calling out to aides. Kennedy, who often arrived before dawn, sought a quieter, less cluttered setting. He would often look out his office window, across the Court’s marble plaza, to an exquisite view of the Capitol. When he joined the Court in February 1988, he inherited the chambers of Lewis Powell, the centrist conservative who had cast the deciding vote and written the rationale of the 1978 Bakke case. That personal history was not lost on Kennedy.

  Further, although Kennedy had protested Justice O’Connor’s decision for the majority in Grutter, he knew it had been the law for a decade and was not ready to reverse it outright. There would be other cases on the issue and time enough to end the racial affirmative action that had proliferated on the nation’s campuses.

  Justice Scalia, like Thomas, opposed any use of race in admissions, but he saw how the University of Texas dispute could not be used to reverse the University of Michigan decision in Grutter v. Bollinger. Lawyer Rein, on behalf of Abigail Fisher, had not directly asked for such a reversal. Rather, Rein had argued that the Court should strike down the University of Texas policy based on the standard of Grutter, albeit in a narrow reading of that case.

  As the two ideological camps inched toward each other over the weeks, consensus eluded them. They were soon into April, and nearly all the cases from the October–December oral arguments had been resolved.

  Tensions were escalating over the Shelby County, Alabama, case, too, but there the votes were clear-cut. There would be no shifting of sentiment or attempts to bridge ideological differences. Voting to invalidate the crucial formula underlying Section 5’s preclearance rules were Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Voting to dissent from that view were Justices Ginsburg, Breyer, Sotomayor, and Kagan. Roberts and Ginsburg were writing the lead opinions for the dueling sides. “Our country has changed,” Roberts would eventually say in his opinion for the Court, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

  In her dissent for the liberals, Justice Ginsburg stressed that the states covered by the Voting Rights Act preclearance rule still had the worst voting rights violations nationwide and that the majority’s position was turning its back on the vision of slain civil rights leader Martin Luther King, Jr. “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion,” Ginsburg wrote, “that commitment has been disserved by” the majority’s decision.20

  This case certainly showed the strains over race.

  If the heated opinion Sotomayor was drafting in the University of Texas case had made it into the public eye, more fervent conflict would have captured America’s attention. It would have marked the first time she revealed, as a Supreme Court justice, her passionate views about race in America. She felt deeply that special measures still were needed to lift blacks, Latinos, and other minorities through higher education. As an initial matter, she preferred phrases such as “race-sensitive admissions policies” to the phrase “affirmative action.” She thought it important to explain the nuanced programs universities were then using, as opposed to past policies giving preferential treatment solely on the basis of race. She thought the Court was evading the dilemma of race in America and the reality she knew well, that people were still judged by the color of their skin.

  But Sotomayor, who had come on so strongly at the start, became satisfied with Kennedy’s retreat in his succession of draft opinions.

  Kennedy’s draft opinion for the Court now was saying that the University of Texas racial policy should return to lower courts for another review. He was writing that the appeals court’s first assessment was too deferential, that the appeals court could not merely take the university’s word that race-neutral approaches had failed to provide sufficient diversity in the entering class. He said that a lower court needed to undertake its own inquiry into whether a university could achieve sufficient diversity without using racial classifications and satisfy itself that no workable race-neutral alternatives would produce the same educational benefits of diversity.

  Writing for a new majority of seven, Kennedy left intact the central holding of Grutter. Sotomayor dropped her dissenting statement. She, along with Breyer, signed the Kennedy opinion, too. Roberts and Alito would have signed Kennedy’s stronger statement but agreed to the compromise, as did Scalia. He additionally broke off, however, to write a separate opinion saying that he would have wanted the Court to reconsider Grutter but was deterred because challenger Abigail Fisher did not request it. Justice Thomas stuck to his guns and declared that the 2003 precedent should be overturned. “I would overrule Grutter v. Bollinger, and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause,” he wrote, adding his statement from the 2003 Grutter case that “the Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all.”21

  Justice Ginsburg continued to dissent from the majority because she did not think the University of Texas case should be sent back for reconsideration. Even as Ginsburg protested the returning of the case to a lower court, she said that the Kennedy majority “rightly declines to cast off the equal protection framework settled ten years ago in Grutter.” She reiterated her sentiment that universities “need not be blind to the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” Ginsburg’s message to the public: The rules have not changed.

  The Supreme Court decision was interpreted by supporters of affirmative action, including President Obama, as accepting the status quo. “The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body,” the Department of Education said in a letter to colleges and universities three months after the ruling. It advised them not to change any of the procedures in place from the 2003 court decision.22

  Opponents of affirmative action, including lawyer Rein and activist Blum, countered that the University of Texas ruling required for the first time that administrators provide extensive data on why options that did not involve race had fallen short. They and others predicted that the decision would eventually spell the demise of affirmative action because, as the ruling played out in lower courts, schools would have the difficult burden of proving that before they turned to racial classifications, all other alternatives had failed.

  Outside observers would quarrel over how much the legal landscape had shifted. But it was clear that co
nservative justices had retreated, and at least for the immediate future, the University of Texas policy and national practice of campus affirmative action would continue.

  It had taken compromise and concessions by a number of justices. But it started with the woman who was the first Hispanic and who would make no apologies for what affirmative action had done for her.

  * * *

  She would not wield the same influence on her colleagues a year later. In April 2014, Justice Kennedy won a majority in an equally contentious but less far-reaching case testing a Michigan state ban on racial affirmative action, including at public universities.23

  Now Sotomayor’s voice would be heard beyond the Court, and loudly. She issued a barbed fifty-eight-page dissent to Kennedy’s eighteen-page opinion upholding the Michigan law approved by voters. For the first time since President Obama appointed her in 2009, she also took the bold step of reading portions of the opinion from the bench. That occurs when dissenting justices want to draw special attention to their views. For nearly five years, Sotomayor had eschewed the practice, saying it seemed overly dramatic for the judicial setting.

  Not this time. For twelve minutes, nearly as long as Kennedy had taken when he announced the Court’s majority views, she condemned the majority stance. She chided her colleagues for ignoring the needs of people on the margins and pointedly challenged the contention of Chief Justice Roberts and other conservatives that it was time to look beyond race. Her opinion echoed with her personal story: “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” She was speaking generally, of course, but the words could have been taken from the text of her speeches, especially to student groups.

  She said the 2006 Michigan law forbidding racial criteria placed a heavy burden—“selective barriers”—on just one group. She noted that those seeking other types of preferences in admissions, based on family alumni status, for example, could and did lobby for such measures. In contrast, the only way to obtain race-based affirmative action would be first to win a state constitutional amendment lifting the one approved nearly a decade earlier.

  Her opinion, joined only by Justice Ginsburg, immediately drew intense, competing responses that recalled the dual comments to her “wise Latina” remark. Attorney General Eric Holder, who is black and had encouraged people to talk about lingering race discrimination, deemed Sotomayor’s dissenting statement “courageous.” The conservative National Review called it “legally illiterate and logically indefensible.”

  Fellow justices were critical, too, notably Chief Justice Roberts, whose views on racial remedies she used as a rhetorical weapon. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,” she said, clearly mocking his view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

  In response, Roberts criticized Sotomayor for “expounding … policy preferences.” He threw her sentiment about minorities’ doubts back at her, rejecting the notion that it was “out of touch” to believe that racial preferences could reinforce feelings among minorities that they do not belong. Clearly irked by the airing of personal strains, he added that it “does more harm than good to question the openness and candor of those on either side of the debate.”

  Declaring that she could not ignore the ruling’s “unfortunate” consequences for minorities trying to improve their lives through education, Sotomayor concluded, “For members of historically marginalized groups … the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.”

  TWELVE

  Her Divided World

  When Sonia Sotomayor left Washington for public appearances to promote her memoir, people lined up hours ahead of time to catch a glimpse or hear a few words from this singular justice. Her book tour, extending from January 2013 into 2014, was extraordinary. No member of the nation’s highest court had ever been paid close to the $3 million–plus she had drawn as an advance from Knopf for telling her life story.1 Nor had any justice attracted the kinds of crowds she did, with their mix of men and women, white, black, and brown, dressed in everything from conservative dark business suits to fruit-colored capri pants.

  During her April 2013 visit to San Juan, on the island of her ancestors, people began lining up at 8:00 a.m., more than six hours before Sotomayor was scheduled to appear at the Plaza Las Americas, billed as the Caribbean’s largest shopping mall.2 Carrying copies of her memoir, My Beloved World, as it was published in English, and Mi mundo adorado, as it was titled in Spanish, they waited near store windows that were decorated for spring, complete with prom dresses and outfits in First Communion white, such as those Sotomayor wore as a Catholic school girl. By the time she arrived, shortly after 2:30 p.m., people were crowding around the stage where she would speak. Other shoppers leaned over railings on the floor above to get a look at the Latina who had reached the pinnacle of the law.

  This Puerto Rican tour—four days of promotional events—came at a particularly important time in the Supreme Court’s annual term. The justices were wrestling with cases testing government policies intended to give blacks and Hispanics a lift in college admissions and to protect their voting rights in states that had a history of discrimination. Sotomayor and her eight colleagues would also be resolving their first-ever disputes over same-sex marriage and taking up an emotional custody battle over a baby with Native American roots.3

  The Court’s caseload was not hindering Sotomayor, who had been on a whirlwind of promotional activities since early January. In bookstores and on university campuses from New York to Chicago to Austin to San Diego she was the center of huge events. People came to hear from her, in San Juan and elsewhere, as a person who embodied the American dream far more than as a jurist with certain legal views.

  She took full advantage of her popularity, signing hundreds of books at a sitting and selling tens of thousands of copies in the first few weeks of publication. Actress Rita Moreno, a Puerto Rican who was the first Latina to win an Oscar—for her role in the movie West Side Story—was the reader for the audio version of My Beloved World. In an appearance with Sotomayor in Washington, D.C., featuring the book, Moreno said that she burst into tears when she heard that the first Hispanic had been nominated to the Supreme Court in 2009. Their public conversation in a large theater before a sold-out audience was not the usual judicial fare: Sotomayor revealed that she had no memory of her mother ever hugging her, while Moreno said that her mother had passed down her terrible taste in men.4

  Sotomayor’s appearances in San Juan, just as with Moreno in Washington and elsewhere, offered the kind of atmosphere usually reserved for media celebrities. At the Plaza Las Americas, when it came time to greet her fans, Sotomayor emerged from a closed hallway between a shoe store and clothing shop. Accompanied by island dignitaries, she strode up onto the elevated stage. Spectators whooped and clapped from lines that had formed hours earlier and snaked past a dozen retail shops.

  The contrast with the atmosphere at the place where Sotomayor spends most of her days—the mammoth-columned Supreme Court building—was striking. The Court is defined by hierarchies even in the way people line up. On any given day of oral arguments, there are separate, police-monitored lines for lawyers, for news reporters, and for the general public.

  At the mall in San Juan, where all gathered together, everyone seemed to have a smartphone or camera to snap photos of the justice. Sotomayor’s paparazzi included people decked out in glittery jewelry, students whose parents had allowed them to skip a day of school, and even a maintenance man carting a bright yellow bucket and mops, who stopped to record her appearance.

  Sotomayor wore a burnt-orange jacket over a taupe dress, and her usual mass of black curls was combed out. She addressed the crowd in Spanish and said she was thrilled to see so many
people. She gestured with her hands, a habit she had tried to control as a member of her high school debate team. But moving as she spoke—moving all the time, really—was her way. She could energize any room, even an enormous shopping mall.

  When she began signing books, people greeted her as if she were an old friend, an aunt, or a sister. After an hour the line was still moving but growing longer. Sotomayor left just in time to make an early-evening cocktail reception with local dignitaries at a nearby marina.

  The next morning, she drove with an entourage from San Juan to Gurabo, about twenty miles south, and was back at it, talking about her life and signing books. This time her admirers were crowded into the Universidad del Turabo Pedro Rosselló Library. Large pictures of her book jacket—with her face on it—were everywhere. The festivities began with a private reception and luncheon buffet. About two hundred friends, family, and professors—some whom she had known for decades, others she had just collected along the way of this promotional trip—jammed into a suite of small offices. People were more interested in seeing her than in eating lunch.

  For this appearance, Sotomayor wore a patterned black, orange, and white dress with a black cardigan. She looked dressed up but more comfortable than the day before—her hair back to its usual curly mass—as she moved effortlessly through the crowd of well-wishers, shaking hands, hugging, posing for pictures. After hobnobbing, sometimes in Spanish, but mostly in English, Sotomayor headed to a large auditorium, where she took questions.