Scott Gurvey's Public Offerings

(Supreme Court Justices Sotomayor and Coney speak on, “How to Disagree Agreeably,” Feb. 23, 2024, National Governor’s Association, NGA via YouTube.)

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My mother was always an optimist. She was sure that, given time, people could rationalize if not eliminate their disputes. In her vision, people of different races, different religions, and different economic positions could learn to live side by side and she was always correcting me if my big mouth strayed too far from civil discourse.

I thought of her when I read about an unexpected show of unity amid today’s polarized political climate. Supreme Court Justices Amy Coney Barrett and Sonia Sotomayor made a passionate joint appeal for greater civility and respect within the nation’s highest court. Despite their vastly different judicial philosophies and ideological leanings, the two justices found common ground in their concern over the increasingly caustic tone that has pervaded the court’s proceedings in recent years.

Speaking at a legal conference in Washington D.C., Justices Barrett and Sotomayor took the stage together. Justice Sotomayor, a liberal icon appointed by President Barack Obama, opened the remarks by highlighting the court’s critical role as a neutral arbiter of the law and the importance of maintaining judicial independence free from partisan rancor.

“The Supreme Court is not a political body, though our rulings inevitably have political implications,” Justice Sotomayor stated firmly. “We are entrusted with interpreting the Constitution and upholding the rule of law, even when it may be unpopular or inconvenient for those in power.”

Justice Barrett, a conservative jurist nominated by Donald Trump, echoed her colleague’s sentiments, calling for a return to civility and open-minded discourse, even in the face of profound disagreements. “While we may vehemently disagree on particular issues, we must never lose sight of our shared commitment to justice, fairness, and the principles enshrined in our Constitution,” Justice Barrett implored. “Resorting to personal attacks and demonizing those with differing viewpoints is antithetical to the court’s mission and undermines public faith in our institutions.”

The two justices then took turns recounting examples from their tenure on the Court where heated exchanges and thinly veiled insults had marred oral arguments and formal opinions. They expressed regret over such lapses in decorum, vowing to lead by example in promoting a culture of mutual respect and collegiality.

“We may be ideological opposites, but Justice Sotomayor and I have found common ground in our reverence for the law and our commitment to upholding the dignity of this noble institution,” Justice Barrett remarked, glancing warmly at her colleague.

Unfortunately, the proof, as they say, is in the pudding. Even if these two women share a common goal of cooling down the rhetoric on the Court, there is little evidence the five men who join Barrett on the conservative side of the bench agree The rushed and controversial confirmation of Barrett at the end of the Trump administration left Sotomayor on the losing side of subsequent dramatic reversals of policy by the Supremes. She has assumed the role of “The Great Dissenter,” a title court watchers once used to refer to Justice John Marshall Harlan (June 1, 1833 – October 14, 1911) due to his many dissents in cases that restricted civil liberties,

Even between the women there is difficulty with the civility proposal. Barrett had recently, and hypocritically, used “cooling down” language to criticize Sotomayor and the other liberal justices. Yet in a unanimous decision rejecting state efforts to remove Donald Trump from 2024 ballots, the liberals had concurred only in the judgment, criticizing the court’s reach. Barrett agreed with the outcome but took issue with the tone of the dissent. “Writings on the Court should turn the national temperature down, not up,” she wrote.

Today Sotomayor was driven to issue a dissent in United States v. Texas. In this case the Supreme Court, voting 6-3 along the usual conservative-liberal lines, allowed a Texas state law to go into effect immediately, without waiting for the adjudication of challenges to its constitutionality filed in federal court. The law allows Texas law enforcement authorities to arrest and remove to Mexico noncitizens who enter, attempt to enter, or reside in Texas, while instructing state courts to disregard any ongoing federal immigration proceedings. As the Governor of Texas declared, the law embodies Texas’s view that its constitutional authority “is the supreme law of the land and supersedes any federal statutes to the contrary.” Article VI, Clause 2 of the U.S. Constitution, the “Supremacy Clause,” be damned.

Sotomayor writes, “The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional.” She also takes a shot at the Fifth Circuit Court of Appeals (footnote 5), which she says, “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.” “This Court,” she continues, “makes the same mistake.”

Civility? I think not.

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Update March 20 5PM

The Fifth Circuit apparently got the message after being cited by the Supreme Court yesterday (see above). Overnight the court put a stay in place to keep the Texas law from going into effect. It also scheduled an emergency hearing on the request for a stay pending adjudication in the district court. A decision could be issued at any time.

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