Joan Biskupic’s new biography of Sonia Sotomayor, Breaking In, opens with a telling story from the justice’s first year on the Supreme Court. At a party celebrating the end of the term, Sotomayor decided to shake up the staid affair. After the law clerks put on a series of “tame” skits, she informed them that their performance “lacked a certain something.” She signaled a clerk, who produced a stereo. When Latin music began filling the room, before the clerks, her colleagues, and 200 staff members, the newest member of the court began to salsa.
That would certainly have been enough to make the occasion memorable, but Sotomayor wasn’t done. One by one, Biskupic writes, “she beckoned the justices” to join her. They were resistant, she was determined. “I knew she’d be trouble,” Justice Antonin Scalia quipped when the dance off was over.
If Sotomayor seems comfortable putting her colleagues through the paces, that may be because she has a penchant for pushing herself. This past weekend, at a reunion event for Yale Law School, she revealed that, when it comes to dancing, she’s hardly a natural. “I can’t keep a beat to save my life,” she admitted. That fact kept her away from dance floors for most of her life until she finally decided, “This is something I want to change.”
Fumbling across the dance floor may seem inappropriate for a judge, a figure we tend to think of as a kind of mental Fred Astaire, threading complex legal conundrums and glibly dispensing justice, all without breaking a sweat. Sotomayor is familiar with that image, but it’s one she thinks we would do well to discard. At the annual gathering of the American Constitution Society in June, she lamented the “public deference” that is constantly paid a Supreme Court justice. Being catered to, accommodated, and honored wherever one goes may do much for the ego, but it radically narrows the variety of one’s experience, while gilding the little that one actually knows.
Variety, of course, is the defining quality of Sotomayor’s life, a journey that has taken her from a childhood in Bronx public housing to a perch on the highest court in the land. As she explained in her ACS talk, notwithstanding the robe she wears, Sotomayor has never forgotten what it means to live in a neighborhood where you can’t ride your bike for fear of having it swiped out from under you or the pain of being teased by wealthier classmates when your mother can’t afford to replace “ratty” tennis shoes.
Such heightened sensitivity to the experience of disadvantage—shame, powerlessness, patent disregard—has shaped Sotomayor’s approach to a wide array of issues, from restrictive voting laws and criminal procedure to tribal disputes. It has dedicated her to a probing sense of judicial solicitude, the commitment to which she hardly exempts her colleagues.
Take her dissent in Schuette v. BAMN, the contentious 2013 affirmative action case upholding a Michigan referendum banning affirmative action at public universities. It is best remembered for her sharp reply to Chief Justice John Roberts’ brisk pronouncement in an earlier case, 2007’s Parents Involved, on how best to end racial discrimination: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That assertion struck many as something of a bloodless syllogism, more a rhetorical flourish than a patent reflection of reality. In Schuette, Sotomayor provided a full-throated reply. “Race matters,” she said:
[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?” regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
At first glance, the implications of Sotomayor’s digression seem pretty straightforward: The majority justices don’t understand what it’s like to be part of a group disadvantaged by the ruling, for if they did, they would not have allowed the results to stand. That contention seems to rest on a bold assumption about the conclusions we draw from experience, namely, that the experience we gain firsthand, or that which we derive from others by way of empathy, exerts a kind of gravitational pull toward moral certainty.