Supreme Court Justices Barrett and Sotomayor, ideological opposites, unite to promote civility

(Mark Schiefelbein/Associated Press)

Supreme Court Justices Barrett and Sotomayor, ideological opposites, unite to promote civility

Abortion, 2024 elections


March 14, 2024

With Supreme Court approval near an all-time high, two justices have joined forces to advance the art of disagreeing without being nasty about it.

In less than three weeks, Justices Amy Coney Barrett and Sonia Sotomayor, ideological opposites, said the need for civil debate has never been greater than in these polarized times. And they said the Supreme Court, where the votes aren’t born of anger, can be a model for the rest of the country.

I don’t think any of us have a “my way” or “the highway” attitude, said Barrett, who promotes compromise from a position of strength as part of the supermajority of conservative justices on the high courts. She spoke Tuesday at a conference of citizenship educators in Washington.

Sotomayor said at a meeting of the country’s governors in late February that the justices’ pens can be sharp but also dexterous in writing opinions. There are a lot of things you can do to bring the temperature down and get you working together as a group to get something done that has an advantage in the law, she said.

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Curiously, just two weeks ago, Barrett used strikingly similar language to criticize Sotomayor and the other two liberal justices.

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Trump has halted voting in 2024 because of his efforts to overturn his election loss to Democrat Joe Biden four years ago. But the three liberals criticized the court for going too far.

We cannot join an opinion that unnecessarily makes decisions on important and difficult issues, and therefore we only agree with the opinion, Justices Ketanji Brown Jackson, Elena Kagan and Sotomayor wrote in a joint opinion.

Barrett agreed with them in principle. But she didn’t like the tone.

In my opinion, this is not the time to amplify the disagreement with stridentness. The Court has resolved a politically charged issue in the volatile presidential election season, Barrett wrote. Particularly in these circumstances, the Court’s writings should lower, not raise, the national temperature.

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Barrett rarely dissents from a court that, relatively soon after she joined, struck down abortion rights, restricted the Biden administration’s environmental efforts, expanded religious rights, expanded gun rights and ended affirmative action in admission to universities.

At 52 years old, Barrett is the youngest member of the court. She was appointed by Trump and joined the court just over a month after the death of Justice Ruth Bader Ginsburg. Barrett’s election-year confirmation by a Republican-controlled Senate infuriated Democrats. Barrett was Trump’s third appointee to the Supreme Court. Four years earlier, Republicans in the Senate blocked the president


Obama’s Supreme Court nomination of Merrick Garland, now President Biden’s attorney general, explaining that the vacancy must await the outcome of the 2016 election, which Trump ultimately won.

Sotomayor, 69, has been on the court since 2009 and was appointed by Obama. She has sharply criticized the decisions on affirmative action and abortion, along with the other liberal justices in the latter. During arguments in the abortion case, Sotomayor bitterly criticized her conservative colleagues. Will this institution survive the stink it creates in the public perception that the Constitution and its reading are merely political acts? I don’t see how it’s possible, she said nearly seven months before the court overturned Roe.

Confidence in the court fell to a fifty-year low after the abortion decision in June 2022, and opinion polls just before the court began its new term in October showed little change.

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The justices’ actions harken back to the traveling roadshow of conservative Antonin Scalia and liberal Stephen


Breyer was founded about fifteen years ago. But Breyer and Scalia cheerfully debated their different approaches to the law. Barrett and Sotomayor acknowledge that they see things differently, but instead focus on their determination to civilly disagree. Sotomayor serves on the board of directors of iCivics, a nonprofit education organization founded by former Supreme Court Justice Sandra Day OConnor.

We don’t interrupt each other, and we never raise our voices, Barrett said at the citizens’ conference, describing the justices’ private meetings where they talk about the cases they just heard.

It is nothing new that judges speak publicly about the collegiality of the court. But something unusual happened after the abortion decision. Some justices engaged in a public debate about the court’s legitimacy, the very issue Sotomayor raised in court.

Kagan started the discussion by saying that the court risks losing its legitimacy if it is seen as political. She returned to the theme last summer at a meeting in Portland, Oregon.


in which she emphasizes the importance of courts looking like they are doing justice, rather than knowingly imposing their own preferences as the composition of the court changes.

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Kagan’s comments followed a term in which conservatives stood united in affirmative action, scrapping Biden’s $400 billion plan to cancel or reduce federal student debt, and issuing a major ruling that


gay rights.

But there were other important cases in which conservative and liberal justices joined together to reject aggressive legal arguments from the right, including on Native American rights, immigration and elections.

The court, which was partially reorganized by Trump, will undoubtedly remain an issue this election year. Major decisions await on abortion, guns, the power of federal regulators and whether Trump can be prosecuted on charges that he meddled in the 2020 election.

Most of these rulings will be delivered in June as the judges rush to finish their work and feelings are sometimes rubbed raw even without any shouting.

Sherman and Whitehurst write for the Associated Press.


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