During her confirmation hearing before the U.S. Senate in 2009, Sonia Sotomayor stated that the president “cannot violate the Constitution. No one is above the law.”
At the time, she was answering a question about former President George W. Bush’s use of a law banning torture. Today, 15 years later, Sotomayor has raised the same principle again as a Supreme Court justice, contradicting an opinion that granted Donald Trump broad immunity from prosecution for his “official” actions as president.
“In every exercise of official power, the president today stands as king above the law,” she wrote.
This is just one example this term of how Sotomayor, often supported by her two liberal fellow justices, has fought back forcefully and vented her frustration with the court’s conservative majority, whose decisions have fundamentally changed American government and society, from presidential immunity and abortion to regulatory powers and gun policy.
Sotomayor has been a pillar of the Supreme Court’s left-leaning wing since she took office. She became the highest-ranking liberal justice after Stephen Breyer’s retirement in 2022 and emerged as the most forceful advocate of liberal views as the court took on increasingly polarizing cases.
“She is now the strongest figure” in the liberal camp, said Barbara Perry, a Supreme Court and presidential law expert at the University of Virginia. “She has reached that level … (and) earned the title of ‘great dissident,'” similar to her predecessors such as John Marshall Harlan, a former slave owner who later championed the civil rights of minorities largely through his dissenting opinions while in office.
Sotomayor, the first Latino member of the Supreme Court, was raised by her single Puerto Rican mother in a public housing project in the Bronx. She received scholarships to Princeton University and Yale Law School before beginning a legal career as a prosecutor in the Manhattan district attorney’s office.
Republican George HW Bush nominated her to a seat on the prestigious court for the Southern District of New York in 1991. Bill Clinton, a Democrat, then appointed her as an appellate judge, and when Supreme Court Justice David Souter retired, Barack Obama nominated Sotomayor to replace him.
Since Sotomayor became a justice, the balance of power has shifted. In the 2010s, the bench was often split 5-4 in favor of liberals, if you include Anthony Kennedy’s powerful swing voters. But Donald Trump’s three Supreme Court appointments have cemented a conservative six-justice majority and emboldened its staunchest members, Clarence Thomas and Samuel Alito.
As conservatives have grown in power, they have also made some of the most dramatic rulings in recent years – including the 2022 overturn of Roe v. Wade, which had enshrined the constitutional right to abortion for nearly 50 years. In many of these cases, the ideological divides in the court’s rulings have raised accusations of partisanship.
Sotomayor has turned away from prominent opinions, including banning homeless people from sleeping in public and limiting consideration of race in college admissions. Her writings have been notable for their scathing criticism and scathing language. “One can certainly see … the ideological force of Justice Sotomayor revealed in these dissenting opinions,” Perry said.
She has also taken a leading role in oral arguments. During the argument on the case that ultimately overturned Roe, she wondered aloud whether the Court could “survive the stench… of the public perception that the Constitution and its interpretation are merely political acts.”
And, like other judges during that term, she occasionally gave emphasis to her dissenting opinions by reading them from the bench—a practice designed to draw public attention to judgments involving important decisions during retrial.
She is outspoken in her writings. A decision to lift the ban on bump stocks, a device used to increase the firepower of guns, would have “deadly consequences,” she wrote. In her dissenting opinion on the homelessness case, she said, “Sleep is a biological necessity, not a crime.”
Sotomayor’s dissent in the presidential immunity case was perhaps her most vehement this term. She painted a grim picture of how the ruling could allow a president to rule with impunity. “He orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. He organizes a military coup to stay in power? Immune. He takes bribes in exchange for a pardon? Immune. Immune, immune, immune.”
Her final sentence – “Out of fear for our democracy, I dissent” – deviated from the usual conclusion: “I respectfully dissent.” That caught the attention of US President Joe Biden, who quoted Sotomayor hours after the ruling as saying: “So should the American people dissent.”
“It is not surprising that the judges who do not support this project are sounding the alarm in even more alarmist tones, while the right-wing judges are undermining democracy, the rule of law and the modern administrative state,” said Michael Klarman, a professor at Harvard Law School.
Sotomayor, 70, is differentiating herself from the crowd as some Democratic activists are calling for her to resign to allow Biden to appoint a younger justice who could solidify the liberal wing in the face of a conservative supermajority, half of whom are under 60.
The calls for her resignation are a symptom of Democrats’ concerns about the chances of a Biden victory in the November 2024 general election, a rematch against Trump, and whether they can keep their seats in the Senate, which is responsible for confirming Supreme Court nominees.
Other members of the liberal wing have increased their rhetorical sharpness, while conservatives have exerted their influence by, among other things, limiting the use of the Securities and Exchange Commission’s internal courts and extending the statute of limitations for challenging regulations.
Justice Elena Kagan wrote her dissent in a ruling that overturned Chevron v. Natural Resources Defense Council, a decades-old legal doctrine that gives the judiciary more power over how federal agencies interpret ambiguous regulations and congressional statutes.
“The rule of judicial modesty is giving way to a rule of judicial hubris… In recent years, this Court has too often usurped decision-making powers delegated by Congress to the agencies,” Kagan wrote.
Not all decisions were split along ideological lines. Conservative Justices Amy Coney Barrett and Brett Kavanaugh at times joined their liberal colleagues in dissent. For example, Coney Barrett wrote the dissenting opinion in a case limiting the use of an obstruction charge that played a role in hundreds of charges against rioters who stormed the U.S. Capitol on January 6, 2021.
She also authored a concurring opinion in the presidential immunity case, challenging the notion that protected “official” acts should not be admitted as evidence in a criminal case against a president for private activities.
“I see a streak of pragmatic independence that doesn’t tend toward liberalism so much, but is more pragmatic in its conservative thinking than the more ideological, philosophical views of an Alito or Thomas or maybe even (Neil) Gorsuch,” Perry said.
The Supreme Court will hear more controversial cases in its next legislative session starting in October, including an appeal against a Texas law that requires age verification on porn websites.
Sotomayor told a university audience earlier this year that she lived “in frustration” with a conservative majority. There were “days when I came into my office after a case was announced, closed the door behind me and cried … And there will probably be more,” she said.
More controversial cases will come before the court. But Sotomayor has not indicated publicly that she is ready to step down. “You have to shed the tears, and then you have to dry them and get up and keep fighting,” she said.
