By Andrew Cohen
Sonia Sotomayor hasn’t changed jobs since her last visit to Berkeley Law in 2017. Yet in many ways, her work as a United States Supreme Court justice seems decidedly different.
Back then, the Court featured an even split of progressive and conservative justices, with centrist Anthony Kennedy often the swing vote in 5-4 decisions. Now, with a clear 6-3 conservative majority, Sotomayor often finds herself decrying major rulings on issues from affirmative action and reproductive choice to LGBTQ rights and student loan relief.
Nevertheless, at the annual Herma Hill Kay Memorial Lecture Monday before a packed crowd of Berkeley Law students, faculty, and staff inside Zellerbach Hall, she conveyed optimism about the power of citizen engagement fueled by a sense of justice and historical perspective.
“What choice do you have but to fight the good fight?” Sotomayor said during her hour-long discussion with Dean Erwin Chemerinsky. “You can’t throw up your hands and walk away. That’s not a choice. That’s abdication. That’s giving up. How can you look at the heroes like Thurgood Marshall, like the freedom fighters who went to lunch counters and got beaten, like John Lewis who marched over that bridge in Selma and got his head busted open — how can you look at those people and say you’re entitled to despair? You’re not. I’m not.”
Highlighting how it took nearly a century from the end of slavery after the Civil War until the Court ruled state-sanctioned racial segregation of public schools unconstitutional in Brown v. Board of Education, Sotomayor stressed how Americans relentlessly pursued justice throughout that time.
“Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice. It can take time, and it can take frustration,” she said. “It’s your turn to carry that burden, to show what you’re willing to do and what sacrifices you’re willing to take and figure out how to make things better.
“I live in frustration. Every loss truly traumatizes me in my stomach and my heart. But I have to get up the next morning and keep on fighting.”
Maintaining perspective
Raised in a lower middle class area of the Bronx, Sotomayor went to Princeton and graduated summa cum laude. She attended Yale Law School, then worked as a prosecutor before entering private practice. Nominated to the federal district court in 1991, she joined the U.S. Second Court of Appeals in 1997.
Now in her 15th year on the Supreme Court, Sotomayor described how the work has become “all-consuming.” In recent years, she said the Court’s emergency calendar is busy almost on a weekly basis.
“I understand the impact the Court has on people and on the country and sometimes the world, and so that’s what keeps me going,” she explained. “I had not appreciated how much of a burden that would be. Knowing we are the final word on constitutional law, in some ways it’s frightening because when we get it wrong, we’re impacting generations of people.”
Still, Sotomayor emphasized the importance, in any job, of taking time to unplug from work and connect with friends. Noting how today’s law students appear especially driven, she urged those in attendance to take their foot off the career gas pedal and described the benefits of her regular poker games — where participants make a point to talk about their lives, not their jobs.
“And every once in a while I have a friend like this one I call up,” Sotomayor said, pointing to Chemerinsky. “You have to find a way to detach from work in anything you do. Because if you become consumed by it you lose perspective. There have been times in my life when I’ve done that, and it’s always been for the worse and not for the better.”
Her affinity for connection was on full display. After a few minutes sitting onstage, she announced that she’d begin walking among the crowd, why Secret Service agents had to accompany her, and that she’d gladly take a few photos with audience members while answering Chemerinsky’s questions.
Student appreciation
For 3L Jordan Cohen, managing editor of the Berkeley Law Business Law Journal and co-director of the school’s Alternative Dispute Resolution Team, seeing Sotomayor in person — and getting to ask her a question to end the event, prompting her to call him onstage for a photo together — provided a memorable moment.
“It was somewhat surreal to speak to someone who so directly participates in bending the arc of history,” he said. “Justice Sotomayor is a gem of a human and lion of a jurist and I’ll never forget the experience of speaking to her. I cannot thank Dean Chemerinsky or Berkeley Law enough for this opportunity.”
1L Alejandra Zamora arrived with a few classmates three hours before the event began to ensure watching Sotomayor up close. Raised in a low-income Latine neighborhood of Santa Cruz, she described seeing a Supreme Court justice and its first Latina member as a once-in-a-lifetime opportunity.
“Pursuing a profession in which less than 2% of attorneys are Latinas can make it challenging to find role models who look like me,” Zamora said. “To see a Latina in the highest court in the land is an absolute privilege and an opportunity I would have never had if I were not at Berkeley Law.”
A recipient of the California ChangeLawyer Award (given to future attorney leaders who aim to create a more just and representative justice system) and a student advocate for the La Alianza Workers’ and Tenants’ Rights Clinic, Zamora called the event highly motivating.
“Justice Sotomayor is an inspirational woman who reminded me why I chose to pursue a career in law. She mentioned that our legal system is not perfect, but I, like her, believe that justice and equity are not created out of thin air — we must fight for them,” Zamora said. “Today was a very special day, and I will keep her words with me to remind myself to keep fighting in the challenging legal battles to come.”
A call for civility
Even amid vehement disagreements with some of her fellow justices, and her blistering dissents to majority opinions she believes will erode fundamental rights, Sotomayor called mutual respect and civility hallmarks of Court culture.
“One day at lunch, someone brought up a book about open hostility among Supreme Court justices during FDR’s presidency,” she said. “They spoke badly about each other to the press, many of them wouldn’t have lunch together, and they actively avoided one another. A colleague asked when that changed and why. Someone mentioned one chief justice, someone mentioned another chief justice, and then Ruth Bader Ginsburg in her very calm but commanding voice said it was when a woman came to the Court.”
Sotomayor described how Sandra Day O’Connor, who became the Supreme Court’s first woman justice in 1981, was known for working collaboratively and collegially with Democrats during her career as a Republican politician and carried that into her new role. She said O’Connor eventually insisted that the justices have regular lunches together, a tradition that continues today.
When Sotomayor replaced Justice David Souter, he offered advice from an epiphany he had while agitated with his colleagues.
“He said, ‘I realized they are as passionate about what they believe about the Constitution, about law, about our country, as I am. We have a different way of understanding what’s good for the country and the law, but it’s not because they’re people of ill will, it’s because our passions are different,’” she recounted. “Once I understood that, it was easier to work with everyone. What I’ve found, which was taught to me by my mother, is that if you look for the good in people you can deal with the bad more easily …
“Whatever you want to think about Clarence Thomas’ jurisprudence, and he and I disagree the most on the Court, I can tell you that Clarence is the only justice who knows the name of every employee of the Supreme Court. He not only knows their names, he knows about their families … I can have a very civil conversation with him even though we have very passionate legal discussions.”
Insider insights
When asked about her dissents, Sotomayor said they’re driven by different motivations and crafted for different audiences. She described how Justice John Marshall Harlan’s dissent in Plessy v. Ferguson — which in 1896 allowed state and local segregation laws under a “separate but equal” standard — created the template for Brown v. Board of Education over a half-century later.
Sotomayor said she directs some of her dissents toward lower courts addressing a problem in a way she doesn’t think fully accounts for all the necessary factors. Others are geared to the legislative branch, the executive branch, and sometimes the American public.
Asked about the role scholarship from law school faculty and students plays in her decisions, she said its importance grows when the case centers on an area of law she doesn’t know much about to help place the issue in context.
As for oral arguments, Sotomayor said they carry more weight at the district court level because there it’s one judge deciding the case who is often “working fast to get through overwhelmed dockets.” Regardless of the venue, she advised the audience’s budding litigants to value preparation over performance.
“You can’t win a case in an oral argument at the Supreme Court, but you can certainly lose one,” she said. “You’ve got to prepare … You can’t go in expecting a dramatic scene where a justice is going to get up and say, ‘Ah, I see, I see!’ Elucidate and clarify your position clearly.”
Weighing in on the value of judicial clerkships, Sotomayor noted that while private practice lawyers handle a few projects at a time, “clerking opens the door to dozens of cases, briefs, and presentations, seeing what courtroom tactics do and don’t work, and learning how judges think.” As for her own clerks, she looks for passion, clear legal writing to help her draft astute opinions that read simply enough for non-lawyers to follow, and kindness.
“The greatest compliment I ever receive is when my colleagues tell me, ‘You have the nicest law clerks.’ And I do because I really work at it,” she said. “ I don’t think brilliance gives you a license to be nasty or a license for arrogance … The worst thing you can do is make any decision believing you’re automatically right. You have to look at the other side and appreciate their perspective — you have to understand it to be able to address it.”
Watch the video of this event below.