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April 12, 2023 HUMAN RIGHTS

Human Rights Hero: U.S. Supreme Court Justice Sonia Sotomayor

by Melissa Murray

We often think of heroes as winners—those who have prevailed against the odds to become champions who inspire us all. But it has become clear that even in circumstances of profound loss, some among us nonetheless manage to exhibit heroic qualities.

In recent years, the Roberts Court has issued a number of searing losses to liberals and progressives. From withdrawing abortion rights, limiting state gun control efforts, hobbling public sector unions, and more, the Court has dealt liberals a devastating hand.

But in this climate of loss and retrenchment, Justice Sonia Sotomayor has been a voice of clarity, pragmatism, and hope. Who could forget her pointed question at the Dobbs oral argument: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

In this climate of loss and retrenchment, Justice Sonia Sotomayor has been a voice of clarity, pragmatism, and hope.

In this climate of loss and retrenchment, Justice Sonia Sotomayor has been a voice of clarity, pragmatism, and hope.

Photo courtesy of Jim Block

Her words are prescient. In the wake of Dobbs v. Jackson Women’s Health Organization, the Court has been accused of issuing decisions that heed politics more than precedent. But even as the Court’s institutional stature has taken a beating, Justice Sotomayor continues to exhibit an abiding faith in the law and its institutions. Although she is now part of a hobbled three-justice minority, she continues to make her voice heard—at oral arguments and in stinging dissents that make clear the stakes of the Court’s work for the country and its citizens.

Her joint dissent with Justices Stephen Breyer and Elena Kagan in Dobbs is exemplary of this commitment. In stark contrast to the majority opinion, which scarcely contemplated the real-world consequences of laying waste to almost 50 years’ worth of abortion precedents, the Dobbs dissenters focused on the decision’s impact on American women, who have borne the brunt of the decision’s fallout, and the rule of law. Just a few days after the release of the Dobbs opinion, Justice Sotomayor issued another stinging dissent—this time in Kennedy v. Bremerton School District, where she called attention (with photographic exhibits!) to the majority opinion’s repeated distortions of the factual record.

The two dissents are obviously very different—both in substance and tenor—but they make clear a central tenet of Justice Sotomayor’s approach to judging, which is underlaid with a shrewd pragmatism and an overarching concern for the people at the heart of each case. In Dobbs, she and her fellow dissenters had no hope of convincing their conservative colleagues to stay the course with Roe v. Wade and Planned Parenthood v. Casey, so, instead, they focused on writing for the people who would be affected by the decision and for a future where reproductive freedom might be recuperated. In their forceful joint dissent, they pointed out the inconsistencies of the majority’s approach and reasoning, laying a foundation for future challenges, whether in federal or state courts. More importantly, in focusing on the decision’s impact on American women, they reminded us that the Court does not deal in abstract legal questions; its decisions have real-world consequences that influence all of our lives.

In Kennedy v. Bremerton School District, Justice Sotomayor’s dogged insistence on correcting the majority’s factual errors was a pointed reminder, in a time when disinformation and alternative narratives can distort our discourse, that facts and truth still matter. Now and always.

Loss is rarely heroic. This is especially true when what we've lost is truly consequential—our rights and our faith in our most important institutions. But in articulating these losses—and demanding that we account for them and their impact on our lives—Justice Sonia Sotomayor has proven that sometimes a judge’s robe is also a cape.

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Melissa Murray

Frederick I. and Grace Stokes Professor of Law, New York University School of Law; Faculty Director, Birnbaum Women's Leadership Network, New York University School of Law

Melissa Murray is the Frederick I. and Grace Stokes Professor of Law at New York University. She was previously the interim dean of the UC Berkeley School of Law.