Bench Memos

Justice Ginsburg as Chatty Cathy—Part 2

Among the many indiscreet passages in Justice Ginsburg’s recent interview with the National Law Journal’s Marcia Coyle, here’s one that is especially revealing of Ginsburg’s—and, by her account, Justice Sotomayor’s—crassly political approach to judging:

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did….

It’s odd enough that Ginsburg didn’t simply decline to answer the question (on the ground that it intruded into the realm of confidential Court matters) or didn’t deftly deflect it. But it’s weirder still that she gives such a damning account of her and Sotomayor’s thinking.

By Ginsburg’s account, Sotomayor “might have been distressed” by “some of the reports” about the Court’s 7-1 ruling in June 2013 in Fisher v. University of Texas. In that case, Sotomayor joined Justice Kennedy’s majority opinion, which held that the court of appeals had failed to apply a sufficiently strict standard of scrutiny to UT’s use of race in its admissions process. Ginsburg was alone in dissent. Various commentators on the Left expressed disappointment with Sotomayor over her vote. (One example: Harvard law professor, and renowned “quota queen,” Lani Guinier called it “a surprise that Justices Breyer and Sotomayor signed onto the majority opinion with Justice Kennedy, because they have been supportive of affirmative action in the past.”) By Ginsburg’s account, Sotomayor sought to write the dissent in the Michigan case—and evidently wrote it in such an aggressive (though incoherent) manner—because she “wanted to quell” the “doubts [that some people had] about her views on affirmative action.”

How strange that Sotomayor, in a betrayal of the ethic of judicial independence, should be so concerned about re-positioning herself with those who were disappointed by her Fisher vote. How telling that Ginsburg would eagerly accommodate her—and not feel any embarrassment at revealing the fact.

Relatedly: A D.C. lawyer tells me that he was jarred to hear Sotomayor, in a private conversation, refer to lefty Hispanic groups as “my [i.e., Sotomayor’s] constituents.” A more blatantly political view of the judicial role is difficult to imagine.

I’ll note further that Ginsburg, in the interview, offers a similar explanation for why she assigned the (post-Hobby Lobby) Wheaton College dissent to Sotomayor. I’ll also highlight Josh Blackman’s post from last Friday sharply criticizing Ginsburg and Sotomayor over these interview passages. 

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