Being alone on the case and incurring such a heated rebuttal did not deter Sotomayor. Once she came to her own understanding of the correct approach to a dispute, she rarely budged.
During that same January, Sotomayor offered a unique approach to a dispute over modern tracking devices. As part of an investigation of Antoine Jones, a Washington, D.C., nightclub owner suspected of drug dealing, police had placed a GPS tracker on a car owned by Jones’s wife.38 Based on some of the evidence gathered, Jones was convicted of conspiring to distribute and possess cocaine. The U.S. Court of Appeals for the D.C. Circuit overturned the conviction, ruling that admission of evidence from the warrantless use of the GPS device violated the Fourth Amendment, which prevents the government from engaging in “unreasonable searches and seizures.”
The Supreme Court agreed that the attachment of a tracking device was a “search” by a 9–0 vote. But the justices splintered in their rationale, with Sotomayor playing an intriguing role. Writing for a five-justice majority that included Sotomayor, Justice Scalia said that the affixing of the GPS to the vehicle violated the Fourth Amendment based on eighteenth-century notions of trespass. Sotomayor, who had given Scalia the key fifth vote for that rationale, then wrote separately to suggest that the Court may need to develop a new notion of informational privacy that matches the times. In her concurring statement, signed by no other justice, she emphasized that preventing physical intrusion (the traditional focus of anti–search and seizure protections) might not be enough to ensure privacy in the digital age. She pointed out that technological advances allowed the government to monitor people without actually intruding on their person or property and asserted that it might be time for the Court to reexamine the way it analyzed Fourth Amendment protections in the area of electronic surveillance.
Some academic commentators, including George Washington University law professor Jeffrey Rosen, an early skeptic, deemed her approach prophetic, particularly after it emerged that the United States government was broadly collecting telephone and other digital data on Americans.39
Yet Sotomayor was not a natural favorite of the legal elite. That was where Elena Kagan came in. President Obama had chosen his U.S. solicitor general for his second appointment to the Court, to succeed Justice John Paul Stevens. True to Lawrence Tribe’s prediction when he urged Obama to appoint Kagan over Sotomayor in 2009, Kagan quickly became a strategic force on the bench. A former law clerk to Justice Thurgood Marshall, she was deft during oral arguments, adroitly inserting herself into the flow as Sotomayor routinely interrupted. Kagan’s written opinions were taut. She wrote in sharp declarative sentences with rhetoric that was not overtly flashy but memorable nonetheless.
The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.40
Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence.
Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?”
Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.
Perhaps an alternative comparison revolved around Sotomayor’s stature on the Court and off it. At the marble enclave she was one of nine, among the most junior and not known for her persuasiveness. But beyond its walls, she was magic. She was the Hispanic who had reached the absolute top of the exclusive world of the judiciary.
There was no denying her ongoing rise as a national figure. During her first year on the Supreme Court she was number three on CNN’s list of “The 10 Most Intriguing People of 2009,” behind President Barack Obama and First Lady Michelle Obama.41
There was plainly a national appetite for her story. Two other groundbreaking justices had written autobiographies—Sandra Day O’Connor, after she had reached the twenty-year mark on the Supreme Court, and Clarence Thomas, after he had reached fifteen years. But right from the start, Sotomayor knew she should write hers.
Within a year of her confirmation she signed a $3 million deal with the Knopf Doubleday Publishing Group to tell her life story. When the publication was announced, editor in chief Sonny Mehta said of Sotomayor’s life, “Hers is a triumph of the Latino experience in America.”42
ELEVEN
Equality and Identity
In her early years on the Supreme Court, Sonia Sotomayor’s opinions lacked rhetorical fire. They were marked by exhaustive recitations of the facts of a case and legal precedent. Yet her life story made her a robust voice on race, and when the Court faced a pivotal case on university affirmative action in 2013, her willingness to write a scorching opinion led the majority to alter its course. That crucial opinion, however, would never be revealed to the public. Shades of it would emerge a year later in a dissenting statement in a different affirmative action case and spark a public sensation.
The first Hispanic justice drew a distinction between her approach and the methods of Thurgood Marshall and Ruth Bader Ginsburg. During her Senate confirmation hearings in 2009 Sotomayor had emphasized that unlike those justices, who had taken up their respective causes as litigators, she had served on the board—not in a courtroom—for the Puerto Rican Legal Defense and Education Fund. She simply did not see herself as at the forefront of an ideological cause. When Senator Arlen Specter of Pennsylvania1 referred to the provocative rhetoric of conservative justice Antonin Scalia and asked, “Do you think it possible that if confirmed, you will be a litigator in that [Supreme Court] conference room, take on the ideological battles which pop out from time to time?” Sotomayor said no. “I judge on the basis of the law and my reasoning,” she said.
“Well, perhaps you’ll be tempted to be a tough litigator in the Court,” Specter responded. “Time will tell, if you’re confirmed, if you have some of those provocative statements.”2
It turned out that she did, and in the university affirmative action case those statements would make a difference.
Through an unusually long nine-month set of negotiations over a case brought by Abigail Fisher, a white student rejected for admission to the University of Texas at Austin, the justices went from an initial vote to reject the Texas policy and sharply curtail affirmative action to a decision that permitted the Texas approach and widespread national practice to continue, at least for the near future. The tense debate occurred behind the scenes, and when it was over, there was no public sign of what Sotomayor had wrought.3
* * *
The case of Fisher v. University of Texas at Austin was one of the most closely followed of the Supreme Court’s 2012–13 term. Both sides speculated that the conservative-dominated Roberts Court was ready to roll back precedent dating to 1978 that had allowed universities to enhance racial diversity on campuses by favoring black and Hispanic applicants. The Court had reached out to take up the controversy, over protests from the University of Texas that there was nothing at stake anymore because Fisher had graduated from another university.
Civil rights advocates and education officials feared that the Court was poised to make it more difficult for pu
blic universities to enroll sufficient numbers of minorities, which they believed was crucial to a fulfilling academic experience for all students. On the other side, interests backing Fisher thought they might finally persuade the justices to reverse a course they had taken thirty-five years earlier in the case of Regents of the University of California v. Bakke.
When the University of Texas case was heard on October 10, 2012, the Supreme Court had just opened a new term, the fourth for Justice Sotomayor. This fractious affirmative action case was coming less than a month before the November 2012 presidential election. Former Massachusetts governor Mitt Romney was challenging Barack Obama. Racial issues such as those before the Court—with affirmative action in the Fisher case and voting rights in a dispute from Shelby County, Alabama—were not entirely divorced from controversies in the national election. A looming question was whether minorities who were apt to vote for Obama might be dissuaded from going to the polls because of stiffer voter identification requirements, registration restrictions, and limits on early voting. Republican proponents said the restrictions were needed to prevent fraud. Democratic opponents countered that they particularly burdened minorities, the poor, and the elderly, who might not have multiple forms of identification handy.4
As it rumbled in national politics, the affirmative action dispute was posing a personal challenge for Sotomayor. She had won admission to Ivy League schools, been chosen for a federal trial court position, and ultimately made it to the Supreme Court partly because of her Latina identity. She knew she had gotten a boost that whites had not, but she believed she had proven that she deserved those breaks.
Sotomayor, a Princeton and Yale graduate, epitomized one side of the debate. Abigail Fisher, who had turned to her second-choice school, Louisiana State University, represented the other.
The higher education dilemma traced to the 1978 Bakke case, when the justices had ruled by a 5–4 vote that government had a compelling interest in pursuing diversity on campuses and allowed universities to weigh an applicant’s race as one of several criteria. The Court forbade schools from using quotas.5 A quarter of a century later, in 2003, the Supreme Court upheld Bakke in a case involving the University of Michigan Law School. In that dispute, also decided by a 5–4 vote, Justice Sandra Day O’Connor reinforced the compelling governmental interest in campus diversity and stressed that programs needed to be narrowly crafted and based on individualized consideration of applicants.
Noting that a university education is a prerequisite for leadership in most professions, the first woman justice declared in Grutter v. Bollinger that such paths to leadership must be “open to talented and qualified individuals of every race and ethnicity.” In a separate case decided on the same day, Gratz v. Bollinger, the Court struck down a University of Michigan undergraduate policy that automatically added points for minority applicants, stressing that such affirmative action had to involve individualized consideration and be narrowly crafted.6
Justice O’Connor’s opinion in Grutter v. Bollinger regarding the law school touted Michigan’s efforts to create a “critical mass” of minority students—so that those students would not feel isolated—and distinguished the approach from the racial quotas barred by Bakke. In another key point that would reverberate in the University of Texas case, O’Connor said that Justice Lewis Powell’s controlling opinion in Bakke stood for the proposition that as part of their educational mission, universities were free to make their own judgments related to the selection of students and those who “will contribute the most to the robust exchange of ideas.”
O’Connor closed her 2003 opinion by suggesting that America’s need for university affirmative action was not likely to fade for another twenty-five years.
Yet a few years after the University of Michigan case, the ideological makeup of the Court changed and threw into doubt the future of programs designed to boost the chances of racial minorities. In September 2005 John Roberts succeeded William Rehnquist as chief justice. Beginning with his tenure as a Reagan administration lawyer in the 1980s, Roberts had worked on policy to curtail government’s use of racial remedies. He sought to narrow the scope of the 1965 Voting Rights Act, specifically by advising the president in 1982 to oppose legislation intended to strengthen the federal government’s hand in local cases of intentional voter discrimination.
Now, as chief justice, Roberts appeared willing to take more of a leadership role on racial disputes than Rehnquist had taken. In a 2006 case involving the drawing of voting district boundaries to enhance the political power of blacks and Latinos, Roberts referred to “this sordid business divvying us up by race.” He later voted against race classifications in education and employment, the latter in the New Haven, Connecticut, firefighters’ dispute that Sotomayor handled as an appellate court judge.7
When Justice O’Connor retired, in January 2006, she was succeeded by Samuel Alito, who also was more antagonistic to racial remedies, as seen in the 2009 challenge by Frank Ricci and other firefighters against New Haven officials trying to counteract the fire department’s history of racial discrimination. In a 2007 case, Parents Involved v. Seattle School District No. 1, Alito and Roberts were part of a five-justice majority that rejected integration plans intended to even out the percentages of whites and blacks in schools throughout a district as a way to counteract segregated housing patterns.
The four liberal justices who dissented in the Parents Involved student assignment dispute declared that the new Roberts Court had put at risk the legacy of the 1954 Brown v. Board of Education decision that led to the desegregation of the nation’s public schools.8 “What of the hope and promise of Brown?” Justice Breyer said on behalf of dissenters as he read an impassioned dissent from the bench.9
That 2007 case signaled at least a retrenchment on racial policies in education, which raised the stakes as Abigail Fisher’s challenge to the University of Texas policy worked its way toward the justices.
In 2004, with the seal of approval of the Supreme Court’s 2003 affirmative action ruling, the University of Texas had changed its admissions policy and began considering the race of applicants. It was taking advantage of the Court decision and responding to the fact that the student body at its flagship Austin campus had grown less diverse over the decade. Texas officials began supplementing their so-called top-ten program, under which high school graduates in roughly the top 10 percent of their class were automatically admitted. The supplemental program considered an applicant’s race along with other factors, such as family hardship or disability, to try to create diversity at the campus. University officials said that using race as a factor helped ensure the diversity needed to enhance the educational experience for all students.
Within a few years, as the makeup of the Supreme Court tilted more toward the right, critics—most notably Edward Blum, a former Houston stockbroker who was helping to finance lawsuits against race-based programs—sensed an opening for an attack on the University of Texas plan.
A businessman, not a lawyer, Blum had been targeting race-based government policies since he lost a 1992 congressional election in a racially gerrymandered Texas district. He had become a matchmaker of sorts, finding sympathetic white plaintiffs and hiring lawyers to take their cases. Under the auspices of the Project on Fair Representation, of which he was the sole employee, he raised money from conservative foundations and like-minded right-wing donors. Three of his earlier cases made it to the Supreme Court.10
To find someone to sue the University of Texas over its admissions policy, Blum set up a website that asked rejected applicants to contact him and share their experiences. Several students responded, but none seemed right for the long haul of a court case and news media exposure. Then Blum got a call from an old friend, Richard Fisher, whose daughter Abigail had been turned down by the University of Texas at Austin.
Her father and older sister had graduated from the state’s flagship university, and she had always dreamed of attending the Austin campus. But Ab
igail, who had a 3.59 grade point average on a 4.0 scale and was ranked 82 out of her suburban Houston high school class of 674, was rejected. She believed she had been denied a space even as racial minorities with lower scores had been admitted.11
Blum promised the Fisher family that all legal costs would be covered if Abigail sued. Blum then hired Washington, D.C., lawyer Bert Rein, a founding partner of a half-century-old Republican-dominated law firm with whom Blum had worked on earlier cases.
Abigail Fisher lost before a district court judge and then in the U.S. Court of Appeals for the Fifth Circuit, where a three-judge panel stressed that the Supreme Court’s 2003 University of Michigan decision recognized that universities are engaged in a distinct enterprise. Referring to that decision in Grutter v. Bollinger, the panel wrote, “Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university’s good faith determination.” The Fifth Circuit added that the Texas admissions policy might be “superior” to the Michigan law school approach approved in 2003 because Texas did not keep a running tally of minorities during the admissions process, which might have smacked of a quota.
When the Supreme Court took up Fisher’s appeal on October 10, 2012, and lawyer Rein stepped to the lectern, there was a capacity crowd. All three hundred spectator seats were filled, and reporters packed into the courtroom’s alcoves. Lawyers who could not get seats listened in a special room equipped to pipe in the audio from the courtroom. The justices’ bench, however, had an empty chair. The newest justice, Elena Kagan, had recused herself because she had been U.S. solicitor general when the Obama administration filed a brief supporting the University of Texas in the lower courts. That left the bench without one of its strongest liberal voices and boosted what already seemed like a conservative advantage when the justices agreed to take up Fisher’s appeal.
Breaking In: The Rise of Sonia Sotomayor Page 21