Justice Sonia Sotomayor (00:18):
You reminded me that you started this lecture series with me, and you're ending it with me.
Dean William Treanor (00:25):
That's right. That's right.
Justice Sonia Sotomayor (00:26):
I hope Georgetown Law knows what it's losing. A great, great dean. He has done so much to develop all of the programs of this law school and to catapult it to the top elite status of law schools in the nation. I can't say I will miss you because we're friends and I know that that won't end. And I know that your commitment to the school won't end because you love it. But I'm grateful for everything you've done, and I thank you.
Dean William Treanor (01:00):
All right. Well, thank you very much, Your Honor.
(01:02)
And when I came to Georgetown, I started these conversations with the justice, and I was just so honored that as I was concluding my tenure, I reached out to you and I said, "I can't think of anything more perfect than concluding with this conversation." So again.
Justice Sonia Sotomayor (01:38):
Thank you.
Dean William Treanor (01:39):
I'm just so touched and honored. Another round of applause. So little biography, not that it's necessary.
Justice Sonia Sotomayor (01:56):
Keep it short.
Dean William Treanor (01:57):
Okay. Justice Sonia Sotomayor served as a judge on the United States Court of Appeals for the Second Circuit, confirmed in October of 1998. She was hailed as "one of the ablest federal judges currently sitting" for her thoughtful opinions. And additionally was lauded as "a role model of aspiration, discipline, commitment, intellectual prowess, and integrity" for her ascent of the federal bench from an upbringing in the South Bronx Housing Project. Her American story and three-decade career in nearly every aspect of the law provided Justice Sotomayor with unique qualifications to be a great Supreme Court justice. She's a distinguished graduate of two very distinguished universities. She's been both a big city prosecutor and a corporate litigator. Before she was promoted to the Second Circuit by President Clinton, she was appointed to the district court by President George Bush. And at the time you were named… By the time you replaced Justice Souter, you were the only justice with experience as a trial judge.
Justice Sonia Sotomayor (03:09):
That's still true.
Dean William Treanor (03:10):
That's still true? Very good.
Justice Sonia Sotomayor (03:12):
Justice Jackson was an appellate one.
Dean William Treanor (03:15):
Ah, well, very good. So we start with my correct. So let's go in. So the questions that we have, we asked our participants, our students, for questions. So let me begin. As our students prepare to join the legal profession, they are confronting genuine, unsettling questions about the durability of that profession and of the law itself. When we solicited questions from students ahead of this conversation, the most commonly asked question was the role of courts in safeguarding the rule of law. How do you think courts should address these growing challenges to the rule of law?
Justice Sonia Sotomayor (04:04):
So let's talk about what the rule of law is. It's a wonderful term, isn't it? And you shared the first question with me. I went to the dictionary; believe it or not, I still do simple things. And I went to Black's Law Dictionary, a great source. And the definition was, "The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws." That's the rule of law. And the concept is really more generalized. You can speak about it; it's a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated and equally enforced, okay? Technical definition. But is it really just that? It can't be. Segregation--this is an observation made by a very dear friend of mine, Judge Rosalie Abella, who was not the Ruth Bader Ginsburg of Canada. Ruth Bader Ginsburg was the Rosalie Abella of Canada in the United States, okay. Rosalie was a progressive justice who led women's rights issues and other issues in the Canadian judiciary.
(05:36)
But she reminded me just last night when we were talking about this that segregation was pursuant to law. Apartheid in South Africa was pursuant to law. The Third Reich was formed pursuant to law. So laws can be the source of the infliction of damage to people. So if you decide or define rule of law in the abstract as a concept that laws are promulgated and that all institutions are going to follow them, you have to start with what kind of laws, right? And there has to be a concept greater than just that entities are following laws. So what can that be? And so I went a little further, and I looked at what the World Justice Project defines as a rule of law. And their definition is, "The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability," that subsumes the idea that everyone is subject to the law.
(06:59)
" A just law, open government, and accessible and impartial justice." My friend and Justice Abella describes it as what we're really talking about is the rule of justice. That's how she defines it. But there is something to be said about that, which is when we're thinking about the rule of law, we have to give some principles that are incorporated into that concept. And those principles have to revolve around a sense of ethics of some sort. And those ethics have to be a commitment by the society to abide by certain norms that are fundamental to our existence. Justice Kennedy, my former colleague, my friend still, emeritus on the court, described it as, for him, all laws, how to treat people equally and with dignity. And if you read his jurisprudence, every time he interpreted the constitutional laws, he interpreted it with that principle of dignity at the forefront.
(08:31)
And you can borrow whichever principle you want. But the point is that you have to define it, as Justice Abella says, with some form of, "What is justice? What is the right thing that law should be aspiring to accomplish?" And we as a society have to be committed to that. Right now, I understand there's a lot of questions about what that means and what are our common norms, but once we lose our common norms, we've lost the religion of law completely. So it's going back to figuring out what those are. I'm going to quote Rosalie, and this was her response to me when I asked her what should courts do to protect it: she said, "They need to remain fearlessly independent, protective of rights, and ensure that the state is respectful of both."
(09:40)
I couldn't think of a better answer than that one. That is really, at the end, what judges should do. But it's in the end whatever citizens should do, which is ensure that the courts are fearlessly independent, that we understand that our obligation is to protect the rights given to us under the Constitution. These are not just made-up rights. The Constitution is the structure of the norms that bind us as a society in America. But we also have to demand that all others respect both of these principles. That's what our function must be.
Dean William Treanor (10:29):
That's really good. That's so powerful. That's so powerful and so timely.
Justice Sonia Sotomayor (10:34):
It is, it is. And Rosalie and I have been in this conversation for a while, and you can understand why, because there are some really deep thoughts about what that actually means. What does the word rule of law mean?
Dean William Treanor (10:48):
And that's really… That's the most fundamental point of what we do.
Justice Sonia Sotomayor (10:53):
And one of the things that's troubling so many right now is many of the standards that are being changed right now were norms that governed officials into what was right and wrong. Once norms are broken, then you're shaking some of the foundation of the rule of law.
Dean William Treanor (11:16):
Is there any way to reestablish norms after they're broken?
Justice Sonia Sotomayor (11:19):
Well, I mean, in the end, I think some of my colleagues, like Neil Gorsuch, he talks about democracy being messy. We are going to have to go back to reminding people what the fundamentals of their obligation as citizens is, and their obligation to monitor their public representatives.
Dean William Treanor (11:44):
So we solicited questions from our students, and that's really just the most powerful way to begin because you really started with the most fundamental question. Now let me go to our second question. This is from Yay Lee, a graduate student.
Justice Sonia Sotomayor (12:00):
If you're here, stand up. No. Okay. You're missing a picture.
Dean William Treanor (12:16):
Yay Lee asks, "How can we get the country back on track where we respect the rule of law and each other?"
Justice Sonia Sotomayor (12:21):
Education is the primary way to do that. I've been advocating civic education now since I've gotten on the bench. My predecessor, as you all may know, Sandra Day O'Connor believed that civic education was the foundation for the teaching of the rule of law. And I took over her seat on the board of icivics.org. But I speak publicly and around the country about it. I have been complaining forever, since I've been a judge. And now it's 30 years, that law schools are not doing enough to teach about the meaning of rule of law. They have not done enough to teach about our respect for the Constitution in that rule.
(13:12)
The fact that some of our public leaders are lawyers advocating or making statements challenging the rule of law tells me that fundamentally our law schools are failing. This should be part and parcel of the curriculum of every law school. And I can say, my own Alma, I'm not blaming Georgetown. But I'm blaming my own alma mater because I know I wasn't taught that when I was in law school. It was not the subject of conversation. There may have been less of a threat to the concept back then. And so that may be the excuse that's used. But in recent times, and I'm not talking about just this moment, I'm talking now for 20, 30 years, there have been serious questions raised around this issue.
(14:06)
And I don't think there's been enough time spent in the education of lawyers, but in lawyers and judges' education of the public. More than ever we have to get up and explain, and repeat and explain again, why judicial independence is critical to everyone's freedom. Because arbitrary power is just that. And it means that anyone is going to be subject to unfairness at someone else's whim. And so the fact that you may like the use of arbitrary power against someone else at the moment and you can target whomever you want at any moment, you have to be worried about the day that will turn on you. That's why we have the rule of law, which is to give a set of expectations to people that they can rely upon.
Dean William Treanor (15:05):
And again, as you said at the beginning, everything else follows from that.
Justice Sonia Sotomayor (15:08):
Exactly. Exactly.
Dean William Treanor (15:09):
And that's the core of the judicial role, protecting individuals.
Justice Sonia Sotomayor (15:13):
The rights of people.
Dean William Treanor (15:14):
Protecting the rights of people. And as you say, people should realize that even if they like a result now, it may turn on them.
Justice Sonia Sotomayor (15:23):
Exactly.
Dean William Treanor (15:26):
So our next question, from Tessa Freeman.
Justice Sonia Sotomayor (15:31):
Hi, how are you? Are you a student?
Tessa Freeman (15:34):
I am.
Justice Sonia Sotomayor (15:34):
And what year?
Tessa Freeman (15:36):
I'm a first year student.
Justice Sonia Sotomayor (15:36):
All right. Do we have a Georgetown photographer here? I got all these other people here, but they don't count. Where's the Georgetown photographer? Come on, do your job. Come on. [inaudible 00:15:56]. Go ahead. You want to ask her question or do you remember your part?
Tessa Freeman (16:08):
Yeah, that's fine. I think you should ask the question.
Dean William Treanor (16:17):
Okay.
(16:17)
So when Justice Ginsburg appeared and one of our students who was not as well-dressed as you, Tessa, met the justice and she came up to me afterwards and she said, "I'm really not well-dressed. And my mother said to me this morning, Dress well; you might meet the justice." And I said, "What are the odds on that?" So…
Justice Sonia Sotomayor (16:43):
Now do you remember? You don't remember? And some might think it's an inappropriate joke. When I was growing up, I was always told as a child, "Wear clean underwear. You might get into an accident someday." That's almost in keeping with the center.
Dean William Treanor (17:00):
Very similar. Very similar. As was I.
Justice Sonia Sotomayor (17:03):
Yeah. Yes. We were all told that.
Dean William Treanor (17:07):
So Tessa's question is, "What advice do you have for young women in law during this time of attacks on our legal system? What is unique about being a woman in the legal field, and how do you think that women might be especially able to tackle today's legal challenges?"
Justice Sonia Sotomayor (17:27):
That's such a hard question to answer. I think that for your generation, certainly not mine and clearly not Justice Ginsburg. As most of you know, when she graduated from law school, no one offered her a job at a law firm. Okay? And she only got one offer for a judgeship. And she was the first in the courthouse, at the time, as a clerk. And
Justice Sonia Sotomayor (18:01):
The same story applied to Justice O'Connor. We're not at that age and now that we're 50% of the student population in law schools are just about in most, and the numbers are not like when I went to my private law firms. When I was graduating from law schools, the big law firms, which were between 300 and 500 lawyers, back then that was considered mega. They were touting they had one woman partner. Those times have changed, but the objective criteria demonstrates that the days of different treatments have not ended completely. The statistics are very clear that women are still earning less for comparable work to that of men. So something is endemic in the system. And I've always said that part of the problem with hiring and firing is that the people who are hiring and firing, not out of malevolence often, but we all think when we've achieved places of prestige or power that we have the formula for success.
(19:24)
How we do it is the right way to do it. So if you're a man and act in a certain way, you think that every lawyer should have those same qualities and you tend to pick mini mes, that that's typically what happens. It happens with everyone. It's a natural inclination. It is very hard to step aside and understand that yes, your route to success was useful and got you there, but that you're not the only one perched in that place and that there are so many different styles that are effective and so many different personalities and ways of doing things. I found that out in the DA's office. But nevertheless, even there when I first got there, it was all male-dominated in positions of power. That since then, and that was 45, 50 years ago, God, I'm afraid of saying that. 45 years ago, that has changed dramatically.
(20:36)
But as women, you are still going to have challenges, challenges about people's stereotypes and expectations about women. You still deal with beliefs by some that women are somehow soft and their empathy doesn't permit them to make hard choices. You still have stereotypes about a lack of aggression. And so, when you have it, they don't call you assertive, they call you combative or not nice if you're a woman. But the point is that those things still, I think, affect women and we still have those challenges to teach that that word that many people don't like, empathy, that ability to see issues from the other side, that that's not a sin, but can be a virtue because it doesn't necessarily, and it doesn't necessarily stop any woman, particularly a woman judge from making hard decisions and some of which are very difficult for other people.
(22:02)
People think that I'm against capital punishment and I always wonder why, because if you look at my record, yes, I've written in a certain number of cases complaining about certain faults or certain cases in which process has been denied a defendant, but nobody counts the number of cases where I haven't objected to the imposition of the death penalty. So somehow, that gets overlooked because you write about one case where you're not talking about feeling sorry for the person, but because you're talking about what you perceive to be a fault in the procedure that person has been given. But this is all part of education, of us teaching others not to mistake or impose stereotypes on every one of us, but to take each one of us as individuals and treat us that way. And that I think is something that it's not unique to women to being able to teach that, but I think it is something that is more easily taught by someone who is treated with stereotypes than by someone who's not. Because if you've experienced it, you can speak more about it.
Dean William Treanor (23:28):
It's a great question, Tessa. Thank you much. Our next question is from Skylar Wu.
Justice Sonia Sotomayor (23:35):
Hi. Come on down. What year are you in? First, how wonderful. My first year, I went to nothing. I was so overwhelmed with work, I never even imagined I would go listen to somebody talk. I'm glad you're more self-confident than I was. Hold on. Where's my… Thank you for being here and good luck.
Dean William Treanor (24:11):
Skylar's question is what core competencies or values do you believe today's legal education must prioritize to empower lawyers to navigate polarization, technological disruption, and systemic inequities while preserving the integrity of the rule of law?
Justice Sonia Sotomayor (24:34):
I started the conversation earlier about making sure that you teach what the rule of law is and that you teach respect for it. I also think it's important to teach ethics. And ethics, not in the sense that they do in classes now, what do the rules teach you that's right and wrong? It's now become a test rather than a conversation about the morals. You see, all laws are floors. They're the basic things that you must do not to violate a norm that's become a law. But that's not what your behavior should be. Your behavior should never be the floor. Your behavior is what you self-impose on yourself as something above the floor. It's never the ceiling. And too many schools don't get that concept across, which is it's not about whether or not you violate a conflicts rule or you technically violate it or not. It's really about what's fair and what will be perceived as unfair in what you're doing.
(26:03)
I often, when I speak about this to young lawyers is no one says that you can't serve a set of papers on Christmas Eve. There's no ethical rules that say, "Don't serve those papers Christmas Eve or the Eve of Hanukkah or whatever major holiday or weekends you want to talk about." There's no ethical rule that stops you from doing that. But ethics, your personal ethics should stop you from doing that to another human being. And I think those are conversations that law firms don't have.
(26:44)
I know when I taught ethics when I was teaching, I was an adjunct at two law schools in New York, my co-teacher set an example, which was, we all know that the exculpatory rule says that if you coerce a confession from someone, that it won't be used in court. All right? But is it okay to take a person's finger and push it back and maybe even break it if your purpose is to ask them where they've put a bomb that's going to explode in 15 minutes and kill as the September 11th, 800, 1,000? Imagine how many people. At what point do we bend the law? These are conversations that I think few ethics classes engage students in, and I think we need to do that. Media literacy. How many law schools are teaching media literacy? Is this law school doing it?
Dean William Treanor (28:02):
Absolutely.
Justice Sonia Sotomayor (28:07):
Very few. I commend you if you are, and if you're not, get to it. No, seriously, if we as lawyers don't know what media literacy is, how do we expect the population to know? If we as lawyers don't know that Wikipedia are not facts, then how is anyone else supposed to? If we don't know what truth is, how will we ever argue in court? And so, media literacy is one of the things I think we need to do.
(28:53)
You were asking a much broader question, I think, which was teaching about concepts of equality and teaching about issues, the more sensitive issues of today. Those have to be taught in teaching people how to have conversations. You can disagree agreeably. The Supreme Court proves that just about every day. Now, when we write and you read our opinions, we're passionate. You can't read one of my opinions and not know how I feel. Not in a bad way, I don't think, but you know how strongly and passionately I believe in what I believe the law is saying. But you shouldn't mistake passion for a belief as my unwillingness to listen or my unwillingness to engage with my colleagues. I think every opinion I write engages with what their fears are and explains why I think their fears are misplaced or answered by other considerations. But the point is that we've lost the ability and I think law schools have to be the place where you as students learn to do that.
(30:26)
And I think we've lost the art of compromise. And that is an art that was more necessary to politicians but it is inherent in the role of lawyers because most of your clients are ill-served by doing litigation to the bloody end, because the only one who generally wins from that is the lawyers. But you laugh, but that is true. Every lawyer is asked to evaluate the strength of his or her client's case. And you have to be able to identify the strengths of the other side's arguments. You have to make better arguments for them than they're going to make. And you then have to assess honestly the probabilities of your client's own success and then weigh the compromise of what makes sense up to what point should they be litigated.
(31:35)
So in lawyering, lawyering is always about negotiation and that art of negotiation is something that many law schools are not spending a lot of time teaching. I do know that there are some, I know that Harvard has a special program, Bill. I haven't studied Georgetown's program. I happen to know about the Harvard one because one of my former law clerks teaches the class. So that's why I'm familiar with that. But there are programs that are doing more of that.
Dean William Treanor (32:10):
We have courses on negotiations as well as inscription.
Justice Sonia Sotomayor (32:13):
These are things, by the way, that these are courses that you should take, whether you think you're going to be a litigator or not, because whatever you think you're going to be, the art of negotiation, to teach the art of negotiation is to teach the art of listening, and to teach the art of not just listening, but understanding what's motivating the other side and teaching you how to broker those needs into a solution. And that's the art, I think, of life generally, but the art of us as a society, being able to move forward.
Dean William Treanor (32:57):
And we're in a world right now in which there's so much polarization.
Justice Sonia Sotomayor (33:01):
We've got to go back to being able to talk together and to figure out compromises that makes sense.
Dean William Treanor (33:07):
And how do we do that as a school or?
Justice Sonia Sotomayor (33:10):
Well, I've given some suggestions, which is, I think it's all classes, but it's classes that students, some of them have to be requirements in my judgment. I don't think this is a matter of electives anymore, but you're talking to the wrong person. I still think that law schools should require law students to do pro bono work, but I know there are many schools who don't do it because they feel that's forced labor. But I don't think it's forced labor. I think that if you become a lawyer, the job of lawyers is to help people regulate their relationships with one another in the society. And if that's what you're going to do, then you have to know how to serve every member of your society, not just the people who can pay you for that service. And so, for me, I think it's a requirement of training as a lawyer to be forced to deal with all relationships in the society.
Dean William Treanor (34:20):
And let me go to a question about the role of justice. What are the most important principles that guide your decision-making as a Supreme Court justice?
Justice Sonia Sotomayor (34:31):
For me. Fair process. I can't control the law. I don't make the law in the way the legislature does. And that means that regardless of my personal feelings of morality, of right or wrong, what's fair in the moral sense is not what I can come to a decision by. What I can give people only is fair process, a full and fair opportunity to be heard by an impartial decision-maker. And so, that guiding principle for me in every decision I make, in every case I review, that's the first thing I'm looking at. Was the person below given a fair chance to be heard? Were their arguments heard, responded to? Were they given an opportunity to set them forth and convinced? And secondly, were they being heard by an impartial decision-maker, someone who actually thought about what they said and responded to it? So for me, that's probably the most important guiding principle. If you study my jurisprudence, you will probably see
Justice Sonia Sotomayor (36:00):
… that a vast majority of my dissents surround issues of fair process because that really guides what I think justice is about in the legal system.
Dean William Treanor (36:14):
So is there a particular case that comes to mind as an example of the dissent?
Justice Sonia Sotomayor (36:21):
I mentioned it earlier, probably all of my death penalty jurisprudence. You see me writing on a death case. I dare say that virtually all of them are based on process or something in the process that went wrong and where the person wasn't given a fair hearing or a fair opportunity to present something.
Dean William Treanor (36:45):
Now, another question about your opinions, and this one is from Ali Fumio.
Justice Sonia Sotomayor (36:52):
Hi, how are you? Come on down. Come, come. It's the advantage of asking a question. You have to work to do that. Now, where are you in school?
Ali Fumio (37:10):
I'm a A2L.
Justice Sonia Sotomayor (37:11):
A 2L. Thank you. What kind of law are you looking at?
Ali Fumio (37:14):
That's a great question.
Justice Sonia Sotomayor (37:14):
That's all right.
Ali Fumio (37:14):
I'm figuring it out.
Justice Sonia Sotomayor (37:24):
Good. That's a great answer actually. That's what you're here to do.
Ali Fumio (37:25):
Exactly.
Justice Sonia Sotomayor (37:26):
To figure it out.
Ali Fumio (37:27):
I've got time. Thank you so much.
Justice Sonia Sotomayor (37:28):
You're welcome.
Dean William Treanor (37:31):
Okay. So Ali's question is, "Your opinions concurrences and dissents are always among the most enjoyable for me to read."
Justice Sonia Sotomayor (37:40):
Thank you.
Dean William Treanor (37:45):
"What does your writing process look like and does it change depending on whether you're writing with the court or in dissent?"
Justice Sonia Sotomayor (37:52):
Oh, absolutely. Okay. I'll answer the first part first. Okay. Majority opinions, the court is speaking. And so, at conference when we're voting on cases, we're going around the room and each justice is explaining what convinced him or her of a particular answer in the case. Okay? As you go around the room, you will get a sense of what arguments were most convincing to each justice.
(38:27)
To get a majority opinion, you have to get consensus on a majority opinion. So you need five votes on some approach to the answer. Okay? And your approach might not necessarily individually be the approach that convinces all five. So you have to craft an opinion to speak for five people. And so you do end up suppressing some of your preferences. There are things that you might have said if you were writing alone that you can't or won't say for a majority, A, because the others won't join you. But because you might sabotage or get them to say, "No, we don't want to join that at all." So you are really constrained in crafting a majority opinion. It is an opinion of the court.
(39:16)
A dissent on the other hand or a concurrence are your personal views. And so you are much freer to express your views individually as opposed to trying to do it for a group of justices. There is a tradition now in the Supreme Court, I don't know if it existed before I got to the court. I know it existed when Justice Ginsburg was the senior member of the typical dissenting group. Okay. She insisted that there be one majority dissent opinion. And so that does constrain you to try to speak in a unified voices for a group of justices. But even with that, you will sometimes find that in a dissent in particular, there will be sections that everybody joins and then sections that people won't join or will write another thing to get their views out. So dissents can be much more personal.
(40:25)
In terms of my writing process, my law clerks tend, after we've had conversations about my views as I'm preparing for oral argument because we're crafting and thinking about the questions that I want to answer during oral argument. And so we've discussed thoroughly what my views are, what is likely to convince me of my vote. We're working together when I'm writing my statement for the conference of how I want to approach the case and explain to the others why I'm voting. And then there's the vote and I've gotten the views of everyone. And what happens is I come back and tell my law clerks what the vote was, what arguments convinced everybody. And basically speak about in broad terms what the outline of a draft should look like.
(41:29)
They give me a draft, and my very first edit to any draft given to me by anyone is never line edits. It's always substance edits. I believe in breaking down every step of my logic into simple and direct terms. I'm also a storyteller, so I believe that people should be able to read my opinions and not necessarily understand the intricacies of the law, but understand the human thought process that led me to my conclusion. They should be able to go with me intellectually, but emotionally to my conclusion as well.
(42:25)
And when I speak about emotionally, to convince people you're right, they have to understand why you're right. They have to come to that conclusion that it's not just legally right, but it's logically right and right in their stomach. The law is not irrational. The law should make sense to people. And so, if you haven't made sense enough to them to appeal to that part of their human side, then you haven't explained yourself clearly enough. And so for me, that is inherently a part of my writing.
(43:12)
I hope that most of my opinions are not filled with legalese because I work really hard at eliminating it because I do believe that that's not what's going to convince people you're right. Explaining it in a way, in a talking way, in telling them a story that they can understand and identify with, that's how you get them to understand what you're trying to say.
Dean William Treanor (43:39):
So another question about your writing, and this is from Liam Brosnan.
Justice Sonia Sotomayor (43:45):
Oh, right up front. This is great. Hello. And what year are you in?
Liam Brosnan (43:49):
I'm a 3L.
Justice Sonia Sotomayor (43:50):
Oh, at least one of them here today.
Liam Brosnan (43:51):
Yeah.
Justice Sonia Sotomayor (43:57):
Where are you going next year?
Liam Brosnan (43:59):
I'm looking to go into plaintiff's side leg with appointment.
Justice Sonia Sotomayor (44:01):
Wonderful. Congratulations.
Liam Brosnan (44:03):
Thank you.
Justice Sonia Sotomayor (44:03):
Good luck to you.
Dean William Treanor (44:06):
So Liam asks, "What audience do you think the most about trying to persuade when you're writing your dissents, your fellow justices, future litigants, or a future and perhaps differently composed court?"
Justice Sonia Sotomayor (44:20):
There's never one audience that is the same for every case. Every dissent is geared towards the appropriate audience for the purpose of that dissent. Basically, the first question I always ask is, "Why am I writing? What's the point I want to make? And what value does the point have?" And inherent in that question is, if I couldn't make the difference and I couldn't win, how can I get that changed?
(44:56)
And sometimes it's for future generations. Okay, because when the court is making a constitutional ruling, you're hoping that over time some future generation of the court will see the error of its earlier ways. And as we know from recent events, the court does change its mind. So this is not without hope. Okay. But putting that aside, the vast majority of cases we deal with are not constitutional. They're statutory. So sometimes the audience is Congress, and there are famous, famous dissents like the Equal Protection Act case for women. And the Betsy…
Dean William Treanor (45:46):
The Ledbetter case?
Justice Sonia Sotomayor (45:47):
Ledbetter, Lilly Ledbetter, the Lilly Ledbetter case. As you recall, Justice Ginsburg's dissent there got Congress to change the law. It was the first bill that President Obama signed. And so a dissent can often stimulate a response from the Congress. Okay. I've written dissents or concurring opinions that have gotten the sentencing commission to consider issues and address issues that I thought were important to be given new thought to.
(46:19)
Occasionally it's states and people in the state, or it can be legislatures. It can be executive officers, it can be lower court judges when the issue is submitted to their discretion and you're fearing that they're not thinking about an aspect of the problem that should be given some consideration. So you write explaining why that consideration should be a part of this and why they have the freedom to incorporate it.
(46:51)
Every single dissent has a different audience, and the audience is generally who can do something about it. And so for me, I always start thinking about a dissent with the first question, "What's my purpose? And is what I'm doing can it help accomplish it?" And if I can't identify the first and the answer to the second is no, then it's not worth writing. And there are things I have not written.
Dean William Treanor (47:26):
So how do you approach cases that involve complex legal issues and conflicting interpretations of the constitution?
Justice Sonia Sotomayor (47:33):
How do you approach them? I'm sighing because this is the large question about how do you approach constitutional interpretation? Are you a textualist? Are you a originalist? Or what are you? And I always… I mean, some of my colleagues are very upfront. I'm an originalist. I'm a textualist. They'll tell you what they are. And when they do that, come to me. I'll point out one or more of their cases that didn't follow that case. All right.
(48:16)
And they will say to you that they did, but that to every rule, there's an exception. Okay. That's their excuse. Okay. Everyone, as my colleague, Elena Kagan, in one sense said, "Everyone's a textualist now." The days when opinions didn't recite the text of a statute at all, and we have a whole legion of Supreme Court cases that analyze statutes without even quoting the statute, that's a bygone era. Every opinion today starts with the text. Okay. But the question is, what kind of textualist are you? All right? There's a strict textualist who, what's the ordinary meaning of words? Well, I don't think that words have ordinary meanings outside of context. Okay.
(49:12)
I also think you have to look at the background of when the word was used. And so, what it did mean then could be something very different than what it means today. But when's the then? When the statute was passed or when Congress started to make amendments to it? At what point is the then? Okay. You have all sorts of questions like that. To me, precedent is very important because precedent to me is an indication of how people with my same degree of training and belief in the rule of law have come to conclusions about what things meant. And I should not be arrogant enough to think that all those other people before me were wrong.
(50:06)
And I also do believe strongly in reliance interests. But I also think that precedent gives you a sense of the parameters of understanding. And context also for me means not just the words of the statute, but how and what they do to how the purposes of Congress were expressed in the statute. Some of my colleagues hate the word, "What was Congress's purpose?" because they think the purpose is reflected in the words. So do I, but in a very different way than they do. I see how they structured the provisions. What were the protections they were giving? What were the protections they were withholding? What were the remedies that they were crafting for this problem that they were looking at? And how does what I'm asking to interpret fit in with that general context, with that general sense of purpose?
(51:12)
So it's not a purpose of what motivated an individual congressman, but what is the structure of solution that this statute created, and how does this interpretation fit into that? And so for me, my approach has always relied on a broader understanding that it's not mere words and it's not mere history locked in time or at a moment because history is always evolving and the words of our constitution are written in very general terms. And so the idea that we would think that we were frozen or into a period in time seems alien to what I think the purpose of the constitution is. Because if they had meant to say, "Don't torture someone this way," they would have just listed the ways that were in effect then that they didn't like. But that's not what they said. They said, "Don't impose certain kinds of punishment without defining what they were." So to me, that meant there were things that they imagined we could imagine that would be unacceptable.
(52:45)
As you know, my colleague, Justice Scalia, who fancied himself an originalist, said that he was an originalist, but he understood how we might not let someone today be burned to death, but burning to death was permitted at the founding. So he thought he was being inconsistent. Now, I don't give him credit because near his death, he said, "Now I'm an originalist. I'd even let them burn them to death now." But I thought he went too far. I think his first reaction was the right one. But my point is that for me, that's how I go about interpreting things. I am looking at history more broadly, and I am paying much more attention to precedent and the history of precedent.
Dean William Treanor (53:39):
So one of the questions, the Supreme Court has overturned a lot of major decisions in recent years. Do you think precedent should ever be overcome? Would you ever overrule a precedent?
Justice Sonia Sotomayor (53:51):
All of us agree it has to be. Brown versus Board of Education was undoing precedent, and I think few people think that it shouldn't
Justice Sonia Sotomayor (54:00):
… Have been. There has been some scholarship suggesting that Brown should never have been done. All right? I'm not going there, okay? I'm just not going there. If we're at that point in the conversation, then we've lost the conversation because there have to be things that we overturn. Generally, much precedent, our Dobbs case does a good job in the dissent of laying out the history of when most precedents are undone. Lots and lots of precedents are undone because history has shown that the economic presumptions of that precedent have been proven wrong, or the societal presumptions of that precedent have been proven to be erroneous. And so, it becomes easier when you do that, when you can point, to say, we did this for this reason, but we see, today, that that's not the way the world works at all. And so, this doesn't make any sense to have this rule down.
(55:13)
We've never had, except for Dobbs, another precedent where we've taken it away a constitutional right that we've granted before. As you know, I think we did that wrongly. I voted in the dissent there. I continue to believe we did that wrongly. I think we should be not just merely cautious, but I don't see a situation in which we should take away a right that we have given and that people have relied upon in organizing their existence as citizens in this country. For me, those should not be overturned.
(55:51)
But Bill, saying never, no one's ever said never. The sorry decisive factors always have recognized that and have recognized that there's a series of steps you have to think about in terms of when to do it. But most important to do it cautiously. People believe in the stability of law. That's one of the comforts that they get from law, is that it's stable. That they can organize their affairs based on their beliefs and what law gives them. The protections that law gives them. Every time we upset precedent, we upset that expectation and we make society uneasy.
(56:42)
And if you're going to do that, you should have a darn good reason for doing, and one that really the majority of people are going to agree with. Maybe not at the moment, but long term. Brown was one where most of the society didn't agree, but it only took about 20 years for the society to change its mind. And it changed its mind almost absolutely, meaning I think most Americans believe in the equality of all people, regardless of their race.
Dean William Treanor (57:20):
It's been just such a privilege to talk to you about these great issues. I think we have time for one more question.
Justice Sonia Sotomayor (57:27):
Okay.
Dean William Treanor (57:27):
Okay.
Justice Sonia Sotomayor (57:28):
I'm sorry I talked so much.
Dean William Treanor (57:32):
Now, really, to have begun this series with you and to have ended this with you is just… It's one of the great privileges of my life. This is fabulous. The final question is, what do you want to be remembered for and what legacy do you hope to leave as a Supreme Court Justice?
Justice Sonia Sotomayor (57:56):
That I cared. That I cared deeply about the law and the people it affects. If I can be remembered for that, then I think that I've done my job as a justice. If I can make people passionate about the rule of law, about your obligation to sustain it and become involved, then I've done what I've wanted to do. I've told kids, I can't… I have no idea whether any of my opinions will be remembered in 100 years.
(58:43)
When you think about great Supreme Court decisions, there's maybe about 20 or 30 of them that, if people don't know the names of them, they know the principles that they establish. But even that, most people don't know. They may know Marbury versus Madison, the judicial review. They probably don't know the case, but they know that the court says when something's constitutional or not. They know that. Most people, I think, know about segregation and Brown versus Board of Education ending it. And there are some other great opinions that people know about, but you're never guaranteed you can write one of those.
(59:34)
We don't control the issues that we get to write about. They come to us. And whether they will be timeless is not something that we can write for. We don't write for the times, we write for the moment and to resolve the case. And so, I can't ever say that I want to leave a legacy of a particular opinion, but I do want to leave a legacy about caring about law and the rule of law and about its impact on people. And never forgetting that law is about our relationships with one another. And when I say ours, it's also personal. We have family law. We have family law that tells family members how they must relate to one another and resolves their disputes with that among them.
(01:00:29)
But we have laws of all kinds that govern virtually every relationship. We have laws about how the government relates to you, how it relates to itself. We have laws about employment, in every field, and how those relate to that relationship between employee and employer. We have laws about the relationship of state and church. We have laws about every human relationship. Those who judge should be sensitive about how our rulings affect people because that is what we are doing. Putting it in a colloquial term, we're messing with your lives and we should care about how we do that. And we should be cautious and careful and independent and thoughtful about what we're doing. And ending with what I started, Bill, we need to be just, in the legal sense of being motivated by the norms and values of our constitution.
Dean William Treanor (01:01:49):
What an inspiring speech, what an inspiring hour with you.
Justice Sonia Sotomayor (01:01:53):
Thank you. That went so fast.
Dean William Treanor (01:01:53):
This was wonderful. Thank you. Thank you.
Justice Sonia Sotomayor (01:01:55):
Thank you, thank you. Thank you.
Dean William Treanor (01:02:29):
Absolutely.
Justice Sonia Sotomayor (01:02:30):
Okay. If you hold this, shall we take that?
Speaker 1 (01:02:32):
Indulge our students.
Dean William Treanor (01:02:33):
Yes. I also want a picture.
Justice Sonia Sotomayor (01:02:35):
All right. We can do… Hold on.
Dean William Treanor (01:02:37):
Okay. Oh, yes. Thank you very much. Okay.
Justice Sonia Sotomayor (01:02:40):
Okay.
Dean William Treanor (01:02:40):
All right.
Justice Sonia Sotomayor (01:02:45):
All right.
Dean William Treanor (01:02:45):
Very good.
Justice Sonia Sotomayor (01:02:45):
If you sit a minute, I'm going to do something. I'm going to go in each section and plant myself in the middle and let the photographer take a picture.
Dean William Treanor (01:02:55):
Oh.
Justice Sonia Sotomayor (01:02:55):
All right? Thank you. I don't want to fall.
Dean William Treanor (01:03:07):
After your picture's taken, there's going to be a reception in sport and fitness. We look forward to seeing you there. But first, the picture.
Justice Sonia Sotomayor (01:03:21):
I'm coming over here. All right.
Speaker 1 (01:03:43):
I didn't want to miss out.
Dean William Treanor (01:04:00):
Oh, that's… Thank you.
Speaker 1 (01:04:00):
Should I…
Dean William Treanor (01:04:00):
Most of you taking photos, please don't post them online.
Speaker 2 (01:04:00):
Oh, God.
Speaker 4 (01:04:00):
So many [inaudible 01:08:08].
Speaker 3 (01:04:00):
So many [inaudible 01:08:09].
Speaker 4 (01:04:00):
If you had taken, just for discussion, [inaudible 01:08:14].
Speaker 3 (01:04:00):
Right? No. Honestly.
Speaker 4 (01:04:00):
No, because I was ready to start taking notes.
Speaker 3 (01:04:00):
No.
