On a U.S. Supreme Court full of justices with a lot to say, Sonia Sotomayor is beginning to find her voice.
In her second term since President Barack Obama appointed her in 2009, Sotomayor is speaking out from the bench for the rights of prison inmates, banding with her fellow Democratic appointees on ideologically divisive issues and boring into the details of federal securities-fraud laws.
And increasingly Sotomayor, 56, is making herself a public figure. She is using the court’s mid-winter recess to speak with students around the country, sharing tidbits about her colleagues and even confessing her insecurities about a job she says weighs more heavily on her than she had imagined.
“Almost everything I’ve done I’ve been frightened about, including being a Supreme Court justice,” she said to a packed auditorium at the University of Chicago Law School this week, before telling them about reassuring words she received from her now-retired colleague, John Paul Stevens.
As the court’s first Latina, Sotomayor is perhaps destined to be in the public eye more than some of her fellow justices. A poll taken by Findlaw.com in May found that she was better known than six of her eight colleagues, trailing only Chief Justice John Roberts and Justice Clarence Thomas.
Her visibility among the public is more than matched by her prominence in the courtroom, where she has established herself as one of the court’s most active participants during arguments.
“She likes to question advocates early and often,” said Maureen Mahoney, a Washington appellate lawyer at Latham and Watkins.
Passion and Legalese
In an Oct. 12 argument about lawsuits against vaccine makers, she interjected 31 times, according to the court’s official transcript.
Twenty-six of those were directed at lawyers arguing in favor of a broad legal shield for drug companies. Sotomayor told the attorney representing Pfizer Inc.’s Wyeth unit that she was misconstruing Congress’s intent when it passed a 1986 law governing claims that vaccines caused injuries.
“You’re making an argument that has a flawed premise, which is that their only concern was protecting the manufacturers,” Sotomayor said.
She occasionally injects a note of passion into the legalese that tends to dominate Supreme Court arguments, as when she voiced alarm about overcrowded California prisons with “people sitting in their feces for days in a dazed state.”
“When are you going to get to a point where you’re going to deliver care that is going to be adequate?” she asked a lawyer for the state. California is appealing a court order to reduce its prison population by 46,000.
At times, the former trial and appeals court judge suggests she is still adjusting to her new courtroom. Seated at the far right-hand side of the bench looking out into the courtroom, she occasionally neglects to flip on her microphone before speaking, leaving the audience to wonder what her first few words might have been.
More than once, she has begun a question even though a colleague has already started talking, leaving it to Chief Justice John Roberts to direct traffic.
She drew a rebuke from Justice Antonin Scalia in a consumer arbitration case in November when she interrupted a lawyer’s answer to a question, as is common during arguments. “Can you let him finish?” Scalia snapped, breaching protocol by addressing another justice directly. Roberts took the younger justice’s side, telling Sotomayor to go ahead with her question.
Sotomayor has proven to be a reliable member of the court’s liberal wing on social issues, joining fellow Democratic appointees Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan.
When the court ruled that the Second Amendment limits gun- control laws by states and cities last year, Sotomayor was one of four dissenters. She joined an opinion criticizing the court’s 2008 ruling that interpreted the Second Amendment to protect individual rights. During Senate testimony that led to her confirmation in 2009, Sotomayor said she accepted the 2008 ruling as “the law of the land.”
The gun vote “is when I abandoned any hope that she would be on the moderate side of the liberal bloc,” said Curt Levey, a critic of Sotomayor’s 2009 nomination and the executive director of the Committee for Justice in Washington.
She has defied predictions that her experience working in the Manhattan district attorney’s office might lead her to side with prosecutors and police more often than some of her colleagues.
Three times this term, she attached statements to the court’s refusals to hear appeals from criminal defendants or inmates. She dissented when the court rebuffed an inmate who stopped taking his HIV medication to protest a transfer and then allegedly was punished by being forced to perform hard labor in 100-degree heat.
The allegations, “if true, describe punitive treatment that amounts to gratuitous infliction of wanton and unnecessary pain that our precedent clearly prohibits,” Sotomayor wrote in an opinion no other justice joined. “I cannot comprehend how a court could deem such allegations ‘frivolous.’”
She has accepted her celebrity status with mixed feelings. At the Chicago law school event, she lamented no longer being able to “throw on my sweats” and walk across the street to get a cup of coffee.
At the same time, she is now embracing her role as a public figure, whether she be reading to grade school students or presiding over a law school moot court.
“I think it’s important for the judge to be out in the world,” she said.
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