Herma Hill Kay Memorial Lecture with Justice Sonia Sotomayor in Conversation with Berkeley Law Dean Erwin Chemerinsky. Recorded Monday, January 29, 2024, at UC Berkeley.
Episode Transcript
ERWIN CHEMERINSKY: Good afternoon. It’s my enormous pleasure to welcome you to the sixth Herma Hill Kay Memorial Lecture. I’m Erwin Chemerinsky. I have the great privilege of being the Dean of Berkeley Law. Herma Hill Kay joined the Berkeley Law faculty in 1960, and remained on the faculty until her death in 2017.
She played a pivotal role in so many aspects of Berkeley Law. She was the second woman to join the faculty, the first woman to be dean. She was Dean from 1992 to 2000. Her expertise was in conflicts of law, family law, and sex discrimination law that she and Ruth Bader Ginsburg wrote the first textbook for law students with regard to sex discrimination.
Herma Hill Kay won every award that the legal profession can bestow. When she died in 2017, Professor Pam Samuelson and Professor Robert Glushko created a fund that then many faculties joined to have an annual lecture in her memory. The first of these was delivered by Justice Ruth Bader Ginsburg in this auditorium in September of 2019, and it is an enormous pleasure to welcome Justice Sonia Sotomayor as the sixth Herma Hill Kay lecturer.
I don’t think I need to do much to tell you Justice Sotomayor’s biography. She grew up in the Bronx, she went to Princeton University where she graduated summa cum laude. There are some Princeton alums here. She then went to Yale Law School. Probably fewer Yale Law School graduates in the auditorium. She’s a member of–
SONIA SOTOMAYOR: Some of us makes mistakes occasionally.
ERWIN CHEMERINSKY: She was a prosecutor in New York in private practice. She then became a judge on the United States District Court for the Southern District New York. A judge on the United States Court of Appeals for the Second Circuit, and then in 2009, President Barack Obama named her to be an associate justice of the United States Supreme Court. It is wonderful to welcome you back to Berkeley.
SONIA SOTOMAYOR: Thank you, Erwin.
[APPLAUSE]
ERWIN CHEMERINSKY: I began my constitutional law class a few weeks ago by reciting many of the major changes in constitutional law in just the last two years. I guess I’ve got to begin by asking you, how are you doing in light of all of this?
SONIA SOTOMAYOR: I take a deep breath in answering that. It’s hard for people to imagine how much work we do cause we only issue about 50 odd decisions a year from the certs we grant. And when I was a circuit court judge, I got to tell you, I write maybe six or seven decisions now, I used to write 25 to 30 back then.
And I had a colleague as I was going to the Supreme Court look at me and say, Sonia, are you going to be bored? Well, I’ve assured him I haven’t been. Cases are bigger, they’re more demanding, the number of amici are greater. And you know that our emergency calendar is so much more active. I’m tired.
There used to be a time when we had a good chunk of a summer break, not anymore. The emergency calendar is busy almost on a weekly basis. So it’s a different– I’m working harder than I ever have. And to be almost 70 years old, this isn’t what I expected, but it is still work that is all consuming. And I understand the impact the court has on people and on the country and sometimes the world. And so it’s what keeps me going. How’s that?
ERWIN CHEMERINSKY: Let me follow up by asking, being a law student, being a lawyer is stressful, of course, not at the level of stress that you do, how do you handle the stress of your position?
SONIA SOTOMAYOR: And this is something that– a question you were thinking of asking and so I’ll preempt it, OK? When I was a law student, there wasn’t as many pressures as there are today. We weren’t as busy as you guys are. I look at resumes for law clerks, I can’t keep up with those resumes. I don’t think I could even when I was 18.
In some ways, I hope that you find some time at 4 o’clock in the morning to actually sit and talk with each other and sort of detach the pressures of life, to just enjoy your friends, and to enjoy just the talking for the sake of talking. And I still do that with my friends. Can’t talk to them about my pressures at work, but I don’t want to.
I do enough thinking and writing and arguing with my colleagues that I don’t want to go and have that conversation with my friends. I want to sit and have them– Let me be a human being and talk.
As you know, I play poker. I’m a fairly decent poker player. And I have friends and we do that and we don’t talk business. We talk life. And I think you have to find a way to detach from work in anything you do. Because if you become consumed by it, you lose perspective about living in life.
And there have been points in my life when I’ve done that and it’s always been for the worse, not for the better. And I think I’ve grown at least in some wisdom in old age. Growing old doesn’t mean you’ll grow wise all the time, but I have grown enough, Erwin, to know to step away. And every once in a while, I have a friend like this one that I call up.
ERWIN CHEMERINSKY: Thank you. Could you talk a little more about your experience as a law student? Most of the people here are law students. Did you enjoy law school?
SONIA SOTOMAYOR: Very much so I hope it’s the atmosphere here. Yale was a special place then, I hope it still is now. I think it is but I’m not there. The professors were very arrogant.
ERWIN CHEMERINSKY: Unlike Berkeley, of course.
SONIA SOTOMAYOR: Yes, they’re in a school all their own in this regard. They think they’re really smart. But their arrogance is in thinking that if they picked you as a student, you’re smart. And so we had very little of the Socratic method because they really thought that they were engaging with you as an equal and they encouraged you to think with them as an equal, and to talk about things in not a confrontational way but as an exploring way.
And that was the first time in my life that people had actually not asked me to recite facts or feed back their theories, but to really engage with them in having a conversation. And I love that part of law school. And as I explained, we weren’t involved in as many activities as all of you are. The activities we became involved in, we committed to completely. But we didn’t spend all of our time doing.
We did spend time talking and thinking about what we were doing and what it meant. And what it meant to our careers and what kinds of careers we wanted and why. I think all of you are career-driven now, but I don’t know that you’ve really stopped to think about what the meaning of your career is and why you’re choosing it because that’s almost just as important.
And so for me law school was a different kind of educational experience and very meaningful. I actually enjoyed it. It was sobering because my classmates at Yale were so brilliant I actually felt dumb. But I figured out what my own strengths were and learned to accept that brilliance comes in all sorts of ways.
It’s not just book smart, there’s something more involved in intelligence. It is learning how to look at things through a different lens than most of my colleagues did. And I think it’s reflected in the way that I’ve developed my career and the things that I’ve done.
ERWIN CHEMERINSKY: If I were to characterize your career, I would say, as somebody who’s tried throughout to really use law to make a difference.
SONIA SOTOMAYOR: Absolutely. And I still try to use my position to make a difference. And not just in what I write but in doing things like this. I spend all of my time trying to inspire you, to try to make you believe in the power you have to make the world a better place.
ERWIN CHEMERINSKY: I’m interested in terms of the transition to becoming a Supreme Court justice, a unique way to make a difference, you’ve been a judge for a long time on the District Court and Court of Appeals, what surprised you most in becoming a Supreme Court justice?
SONIA SOTOMAYOR: All right. I hate sitting down this long. And I like being closer to all of you. So I’m going to come down and talk to you, but there’s security all around so all these people in suits and ties with little things in their ears. They’re here to protect me from myself.
Because they don’t like when I do this. Because they’re afraid if you get up unexpectedly, they get anxious. So don’t do that. I’ll walk around, I’ll touch your shoulder, I’ll even touch your hand. I see some of you with mask. If you feel if you have a sore throat, if you have the sniffles, if you have anything that feels different today, there are masks and people with masks, please wear them to keep me safe and those around you but especially to keep me safe.
So as you know, I’m a juvenile diabetic and so I’m careful about my health. So I’m going to do this trusting that you will protect us. OK. Anyway, Erwin, I’ll answer your question as I’m going down.
ERWIN CHEMERINSKY: I think I’m going to just stay here while you walk.
SONIA SOTOMAYOR: All right. I don’t like sitting. All right.
[APPLAUSE]
Hold on. If you carry that and I hold this. Age brings wisdom. It does. I no longer walk stairs without some help if I can get it. Last year, I celebrated my 30th year on the bench. I couldn’t believe it. It was like– it went so fast. A blink of an eye. It’s like some days, the days feel endless, and the years move like lightning.
And I was a district court judge and a circuit court judge. I’m now 15 years a Supreme Court justice. And I didn’t realize until I got to the Supreme Court how much comfort I took as a judge from knowing that there was always a court above me.
When you’re a district court judge you always know that you’re not the last word, and people have described district court judging as being a focus on doing individual justice. You have parties before you with problems and you’re being asked to resolve their problem. In most instances, not thinking about their industry or about other people who are suffering the same thing. They’re suffering a problem and they want you to help fix it. So you do justice for people.
You get to the Court of Appeals, but you know that if you get it really wrong, and somebody is really upset, they can go up to the Court of Appeals. You come to the Court of Appeals and you’re doing justice for your circuit because you’re announcing what law the circuit will follow. The circuit and the second was three states. New York, Vermont, and Connecticut.
And so a lot of people there by the way. We have one of the highest numbers of cases in the nation. What state do you think feats that? You’re sitting in it. But you still know that you’re not the final word. The Supreme Court is. And I had not appreciated how much of a burden that would be.
Knowing that we are the final word on constitutional law, some ways it’s frightening. Because when we get it wrong, we are impacting generations of people. And today, in statutory interpretation given the dysfunction in Congress where it’s not able to respond to things and there’s such a gridlock in getting anything done even when they want to do something, that it makes it worse because we’re often the final word on statutory interpretation.
It used to be that we could write dissents like Justice Ginsburg did, Erwin, in the– lead the Fair Wage Act case and have a president come in and actually change the law to make it fair as Obama did. In making sure that women who had been discriminated against in wages could collect that difference from a longer period of time than the Supreme Court had recognized.
But we don’t have that comfort anymore, so it’s even harder now. That’s why in some ways, you do need a functioning Congress because you need people who will correct us when we don’t get it right. And help you guys when things need, when problems need to be addressed.
But I had never anticipated how hard this is. And I had never anticipated how personally I would take it. When I think of the losing party even in decisions where I’m in the majority and I’m doing what I think is right under the law, even then, I feel the pain of losing parties. And that’s hard.
And I guess the follow up question so I’ll answer it, Erwin, is what do you do with that? I start every case and every decision I make with looking at the losing party and making sure that I can explain to them in a human way why they lost. And why the law requires the loss they’re experiencing.
But I try to do it eyes wide open because the worst thing you can do is to make any decision believing that you’re automatically right. No matter how right the decision feels, you’ve got to look at the other side. You have to appreciate their perspective. You have to understand it to be able to address it.
And for me, that’s the only way I can survive this job because I know I can’t be God. I don’t know what morality is. That’s not my job. Good and evil is not what I address. I address what the law says about a particular situation. And sometimes I disagree with it and I disagree with it vehemently on a personal level. But I’m the guardian of ensuring that there is justice under law. That it’s not justice in terms of morality.
The morality part, that’s your job. It’s the job of every citizen to think about laws and to figure out when they’re fair and not fair. And when they’re not fair, it’s the job of citizens to work actively to change those laws. I can’t do that as a justice or a judge, but you can as a citizen. And it doesn’t matter if you’re a law student or not, every participant in our society has an obligation to ensure fairness.
And so that’s what you should be devoted to trying to figure out, what do we do with limited resources? How are we going to structure our relationships with each other? That’s what law is about. It’s about relationships. That’s why I became a lawyer because it was the way I thought I could help people, to help how they interact with each other in this society.
Every law makes a decision about the basic relationship that we’re going to have with one another. And whether it’s family law, or employment law, university law, freedom of speech, any of the freedoms you talk about, the law is attempting to try to work among us to find a working solution. And when those guardrails, the laws, are not doing their job, you’ve got to change them. And so for me, Erwin, I had really as a judge not appreciated how hard this work would.
ERWIN CHEMERINSKY: The court has changed a lot in the last 15 years. You’re now the fourth most senior of the nine justices. And especially in the last couple of years, you’ve written so many forceful dissents, how do you decide when to dissent? How do you decide how to write the dissent? Who are you writing your dissents for?
SONIA SOTOMAYOR: Every audience is different with every dissent. You got to figure it out by reading it. Don’t read the newspapers. All right. I hope that every hand goes up I better when it won’t. How many of you had read a Supreme Court decision from beginning to end, majority and all of the dissents?
All right. This is a good audience. Some people haven’t raised their hands. I didn’t when I was in law school. Most of the time, we were reading from casebooks. It really wasn’t until I went to a law firm and then I was reading the decisions to get quotes that I could use in my brief or to get holdings that I could use to support my arguments.
But most citizens don’t read it from end to end but every dissent I have has a purpose. And if you realize the first question I always ask is, why am I writing this? For whom and what is it I hope to accomplish? So I’ll get– you got to– if you’re a law student, you have to understand, the law is imperfect. And the law forgives so many mistakes that happen in court.
When you think about [inaudible] for those of you who have studied and I assume it’d be most of you, you know state courts can be wrong and they can be really wrong and we won’t fix their mistakes unless they’re unreasonably wrong. Do you want to explain that to a client?
They made a mistake, but no, you’re not going to get a remedy. If you look at most malpractice law, it’s the same thing. Lawyers can make mistakes and nobody fixes them. I could spend an entire time on the court writing dissents about the errors that I see the lower courts making. And there just is not enough time to do that. And I would lose my capital if I did.
What I do is I read the decisions below, I read the dissents, and if they say what needs to be said and they’re going to reach the audience who needs to hear it, I don’t write a dissent. But I will write a dissent to different audiences and sometimes I pick, for example, the future.
And that’s particularly true in constitutional law because those are the cases in which you’re trying to talk to a future court to say, this is the error in the thinking of the majority and I really would like you to think about that not just a future court but even my own court. In terms of the next cases that I see coming down.
So some dissents like the web design case last year when I was talking about what I fear in terms of the broadness of the court’s writing. And my hope that lower court judges will be sensitive to these issues and think about the things I pointed out before they rule on these cases. And I’m hoping as the court sees some of the things and fears that I expressed about where this could lead, that the court will pause and not move more in a direction that I think would be dangerous.
There are other cases like the affirmative action dissent where I’m really writing for the future and probably for a different court. And there you right because remember Justice Harlan in Plessy, he became the standard bearer. Took 50 odd more years more, 56 more years, but he became the writer of Brown versus Board of Education. And so you always hope that that could happen.
Then there are other decisions that you’re writing for lower court judges on issues you’ve been reading about and thinking about as a justice. And realizing that they’re addressing a particular problem in a particular way that you don’t think is taking full account of all the factors that they should– you think should consider.
And so you’re writing to them in the hopes that they will use their discretion in a more expansive way than the writings below have suggested. There are cases where you’re writing to the legislature like Justice Ginsburg did with the Fair Wage Act, Fair Pay Act.
There are cases you’re writing to the president and to the executive branch and saying, you’re interpreting it this way but understand the limits of that interpretation or understand its impact may not be exactly what you think it is and that does sometimes have effect.
And sometimes you’re writing to the people. It is we the people, isn’t it? And sometimes you write to the people because you are telling them they have the power to change an outcome. I did that in one voting rights case involving Ohio. Where Ohio was routinely purging its voting rolls and doing it in a way where people who had lived at an address for 50 years were being purged.
And the law was draconian in its purging. And Ohio did listen. They finally did amend some of those rules. And so sometimes you have an impact. And sometimes you address a problem that no one else is willing to change. He’s cute. Jonathan, where are you with your daughter?
I told you to bring her down so bring her down while I’m walking. Sometimes I wrote a dissent from the denial of certiorari in a case– I think it may have been my first major dissent in the cert pool, Erwin. And it was on Alabama’s judicial override of jury’s recommendations of life for capital defendants. And I was outraged that two states permitted judges to override a jury determination on death or life.
And I thought that was a violation of the Eighth Amendment, and the jury trial right of the seventh. And I wrote about it. I couldn’t convince my court that it was an apprendi violation but it did stimulate a lot of attention to Alabama’s system. And just a couple of years ago, they overrode that Alabama law and did away with that.
The case this week, Erwin, was one of those priests statutory cases where the one juror had not recommended death. And I’m sorry, the jury recommended life and the judge overrode that recommendation. So there are a lot of reasons for this sense and each one though has to be, what am I adding? What’s my reason for writing?
ERWIN CHEMERINSKY: And there has to be a reason I can articulate and think and talk about, otherwise, I don’t write. And this is Dean Jonathan Glater and his daughter Maya.
SONIA SOTOMAYOR: Thank you. Hello. Your father has just mortified you, hasn’t he? That’s OK. When you grow up it’ll be better, all right? Can we take a picture now? Are you not feeling that great? Is that why you have the mask on or are you just careful? I’m grateful you are, but do you want to take it off momentarily while we take a picture? OK. I am–
[APPLAUSE]
All right. So, Erwin, I think I answered that question.
ERWIN CHEMERINSKY: It’s a wonderful answer. Let me ask you this. There’s also a lot of law professors in this room. To what extent does scholarship by law professors or for that matter notes written by students matter for justices? When does scholarship matter?
SONIA SOTOMAYOR: When does scholarship matter? Every justice is different and scholarship is more important to some than others. My originalist colleagues believe and like scholarship in their area. And so they like– Yeah.
And you will see them citing lots of originalist scholarship in their decisions. And they very actively read about new ways to interpret the Constitution and new ways to interpret legal principles that some of us believe have been well established. And so they actually actively look for and cite that scholarship and you’ll see it amplify in the amicus briefs that are filed with us.
Others like for me personally, scholarship is very important when it’s an area of law that I don’t know a lot about. And so there’s where I’ll seek scholarship that helps sort of place the area of law in context, tell me what people are thinking about and why. And obviously, every good scholarship is trying to make a point and get you to think their way.
I don’t necessarily have to buy into their way of thinking, but I do find it valuable to give me a perspective in areas that I know less about. And so I am looking for that. I’m fond of things like tax scholarship, believe it or not. Or certainly, we get a lot of it in the IP area, intellectual property area for obvious reasons because we’re being asked to make very technical– We’re asked to make decisions on very technical issues.
And so understanding those issues but also understanding the impact of our decisions is very important, and the scholarship is useful there. I don’t think it’s helpful– We do get isolated people who have sort of offbeat theories who are fond of filing amicus briefs in those cases. I know it makes them feel better and maybe some of them I might read, but if a theory has not been floated below, generally, it’s not a good idea to float it in the Supreme Court. And so those are less helpful.
ERWIN CHEMERINSKY: Thank you. Again, we have so many law students here. They obviously love the chance to clerk for you. What do you look for in choosing a law clerk and could you talk a little about how you work with your law clerks in your chambers?
SONIA SOTOMAYOR: OK. It is disingenuous for me to say that I made a professional mistake in my career, but I did. All right. When you become a Supreme Court justice, how bad could the mistake be? But it was bad. I didn’t clerk.
I did not understand graduating from law school how important clerking was and I had a mentor at the law school who tried to explain it to me, but I was poor. I hadn’t made any money. I needed to pay off student debt. I didn’t want to continue what I thought was a job that would only have you in the library all the time writing legal memos for a judge. Who would have thought that would be interesting?
Well, it can be. Obviously, depending on the judge you have and I think this is the great majority of judges. You get to see in one year of clerking the difference in so many ways to practice law. When you go into practice, you’re going to be working literally on a few projects at a time, and you’re going to see the work of maybe a partner that you’re working with or maybe one or two other lawyers and what adversaries are litigating against you.
But when you’re working for a judge in a case, you’re seeing dozens of cases every day. You’re seeing dozens of different briefs, different presentations in court. You get to see what works and doesn’t work. You get to understand what the judge is thinking about or judges if you’re on an appellate court. You get to see so much more in that one year than you do in five years of professional practice.
And so that’s the value of clerking. And it really– everybody thinks the only clerking that’s worthwhile is state court clerking, that’s just not true. There are fabulous state court judges across the country. And in every state, there are judges that can be emulated and followed. And too often, especially for people from the two coasts, we happen to think the only thing worthwhile are California people and New Yorkers. DC made some contributions, some inroads on that for the federal practice, but you can pick any judge and you will learn a lot.
So having said that, Erwin, what do I look for? Most of the people applying to the Supreme Court have been certified as geniuses by their professors. Your professors are not likely to agree to recommend you to the Supreme Court unless they think you can really do the work. And the reason for that is, obviously, if I take a clerk that someone recommended to me and that clerk really is not quite up to snuff on doing it, I’m going to hold it against that professor.
And that’s true in my holding it against a district court or circuit court judge who recommends somebody to me. And they know that because I need a clerk who can hit the ground running from day one. But I get about 350 applications. There’s probably 100 people who are at the top of their game. Who any one of them would be a great clerk incapable of doing the work.
So it’s not just smarts, it’s not just some legal writing experience and that I require, and clarity of writing, I read the writing samples and I read for that. As you know, my voice is one where I take pride in taking every complex issue and making it simple enough so a non-lawyer can follow my opinions. And for me, I want law clerks who can do that with me but I want something else.
I want people who are excited and passionate about the law. I want people who care. I want nice people. The greatest compliment I receive is from some of my colleagues who law clerks on the Supreme Court, get to eat lunch with the other justices once a year, and many of my colleagues always tell me you have the nicest law clerks. And I do because I really work at it.
I do not believe that brilliance gives you a license to be nasty. I don’t think brilliance gives you a license for arrogance. It doesn’t. And because I believe that, I work very hard at receiving letters from my recommenders, Erwin, that talked to me about the person. Who will give me an example of an uninvited kindness. Because that to me is symbolic of the kind of human being I want.
Now, passion doesn’t have to be just public interest and sometimes I have probably more public interest lawyers than many of my colleagues do because that quality that I’m looking for gets reflected often in people who go to law school. And I don’t want 50 activities on your resume, I want a handful, but I want to see that you made a difference. That you did something new and interesting with that position. That you improved it in some meaningful way.
To me that is critically important in terms of the people who are going to float to the top because it shows me that you have that interest. Now, occasionally, not so occasionally, it’s someone who’s purely academic.
It’s been people who have a particular interest where you can see them shine in law school in that interest, and they’ve co-authored articles and they’ve done some academic work. Passion to me is important not what you do, but what drives you to do. And so that, Erwin, is generally what I’m looking for.
ERWIN CHEMERINSKY: That’s very helpful. All of the–
SONIA SOTOMAYOR: I’m sorry I can’t walk up there. You’re too far up there. All right. Now, I’m going to go this way again.
ERWIN CHEMERINSKY: And as you do, all of the first year law students who are here will soon be doing an oral advocacy moot court exercise. Many of our second and third year students participate in moot court both within the law school and nationally. Do oral arguments make a difference for you and when– and if you had tips for these students about to do their first, what would you say?
SONIA SOTOMAYOR: You can’t win in an oral argument but you can certainly lose. And do you want to be the one that loses? So you got to prepare. Look, particularly in front of the Supreme Court, I think oral argument on the district court tends to be more important because district court judges are so busy.
They’re working fast to get through their overwhelmed dockets and I read everything. But even when you read everything, there is so much to take in on so many cases that oral advocates can actually make on the district court, on a trial court, make their case stand out. And if you understand how to present the essence of your case in a more compelling way, that can help you win a case on a trial court.
On the circuit court, there’s three judges and because of that, three judges generally with different interests and different foci. And so you’re going to get judges often who are better, a little bit better prepared, more prepared because they have more time to do it and they can devote more attention. But even there on the circuit court, because it’s panels of three, you’re talking about people and panels generally that actually do more talking with each other than on the Supreme Court.
And that’s because it’s easier to convince one other person than to convince for others. The larger the group and the more in the process the group is, the last oral arguments can have a dramatic effect to help you win a case. Think about what you’re presenting to the Supreme Court. It’s an issue where there’s been a circuit split, right?
That means judges across the country have looked at this. The best arguments have been floated. The judges have disagreed because we’re usually not taking a case unless there’s a split. So reasonable people have disagreed already. The best arguments have been floated, my law clerks when they’re writing their bench memos to me, are pointing out which circuit court decisions I should read because not all of them add something new.
So they pick out the ones that I should read because they’re going to give me something different in the presentation. Then we have oral argument. We can have in some cases 150 amici, not in all of them. But in some cases, we will have amici. We will have scholarship that our law clerks have found. So think about it. After you asked us to study all that, you can’t imagine we don’t have some thinking of what the right answer is, right?
You can’t study something that closely, think about a legal issue and see the different reactions to it by so many without forming your own thoughts about what the answer is. So why can you lose oral argument? Because we are human beings and certain arguments can get less priority, less meaning by each individual justice.
And so if you miss that argument in your oral presentation and the judge has missed it, you ain’t winning. If you answer a question in the wrong way, you’re not winning. I can’t tell you how many lawyers have conceded a potential win by giving up something that was critical to their case. You have to know your case better than we do but you also have to know what can hurt other people.
And that is one of the failings sometimes of defense attorneys whose cases are granted on certiorari before the Supreme Court. When you go into Supreme Court argument, if you’ve been a trial defender, your focus is just on your client as it should be. And I’m winning the case for your client. I can’t tell you how often I’ll look at Neil Gorsuch and I’ll send him a note and say, I want to kill that lawyer because he or she didn’t give up that case.
Because by the time you come to the Supreme Court, it’s not about your client anymore. It’s not about their case. It’s about how that legal issue will affect the development of law. And how you pitch it, if you pitch it too broadly, you’re going to kill the claims of a whole swath of people.
And you have to know what my colleagues are thinking, and you have to know the direction that they’re interested in moving the law, which might not be the same direction you’re interested in. It’s certainly often not the direction I want to go. But if you concede certain things, you’re going to be marching the court towards an outcome that will hurt more.
And so, yes, oral argument is very, very important. More important in how you can lose a case than it can be in how you win it. I have a law clerk who says he’s most famous because he came to oral argument before me. And I was the judge who looked at him and said, how do you want to lose this case? In the court. And he says that he knew when I was asking that, he knew he had a losing case, but he knew that I was asking him give us a narrow path.
And that’s what the court did. Because I wrote the decision overturning his position, but the point is, that that’s what oral argument is critical. And as I said, you can’t go in there expecting you’re going to be Clarence Darrow and do this dramatic scene where the judges are going to get up and say, I see. I see. Won’t happen.
But you have to understand what its function is to elucidate and clarify your position. It’s also to let the judges talk to each other. It’s the first time on the Supreme Court and even on the Court of Appeals when I was there when the judges were talking to each other about a case through you as a conduit.
Can be very frustrating when a lawyer because they think that everybody’s against them is up there and pushing a hand away, again, not recently I looked at a lawyer and I said he’s not trying to hurt you. Please listen to him. It’s very frustrating when that happens when you’re trying to– another justice is trying to throw a lifeline to a lawyer who’s just so agitated that they’re not listening.
ERWIN CHEMERINSKY: I’d like to get some student questions, but I have one more question.
SONIA SOTOMAYOR: All right. I’m going to come up now.
ERWIN CHEMERINSKY: It’s the most to me, the most important question.
SONIA SOTOMAYOR: Go ahead.
ERWIN CHEMERINSKY: And the most candid. I’ll let you come on up and then–
SONIA SOTOMAYOR: OK.
ERWIN CHEMERINSKY: Welcome back. I’m in my 44th year as a law professor. I’m teaching constitutional law this semester. I have to say that I’ve never seen some of my students as discouraged as they now about the Supreme Court and about the Constitution. What should I say to them?
SONIA SOTOMAYOR: What choice do you have but to fight the good fight. 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 beat up. To men like John Lewis who marched over a bridge and had his head busted open.
How can you look at those people and say that you’re entitled to despair? You’re not. I’m not. Change never happens on its own. Change happens because people care about moving the arc of the universe towards justice. And it can take time and it can take frustration. Think of the beginning of the end of slavery and the end of official discrimination in the United States.
Start it with the horrible decision in Dred Scott. We fought a war, Civil War to end slavery and to announce on paper that all men were created equal. But the paper wasn’t enough. We had to go through another 150 years before Brown and before the Civil Rights Act of 19– was it ’68 or ’69? All of that time, there were people fighting for justice and they never walked away. They just kept fighting.
Every losing battle was a Clarion call to getting up and doing more. And that’s the challenge I give you, which is your turn now to carry that burden. It’s your turn to inspire me. To show me what you’re willing to do, what sacrifices you’re willing to make, to take what losses we hand you, and figure out how to make things better for more.
And so, Erwin, I don’t know that they have a choice. I certainly don’t. Why do you think I’m still where I am? I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.
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ERWIN CHEMERINSKY: I wish that every law student in the country and every lawyer could hear that answer. There are some student questions. And is Jordan Cohn here? Come on, Jordan. Come on up. Let’s take a picture. You. Ask your question first and then you can walk up as I’m answering. OK?
AUDIENCE: Are we on? Yeah.
SONIA SOTOMAYOR: This is the advantage of putting in a question that gets asked.
AUDIENCE: So this relates a little bit to your last response. I gather you have some disagreements with some of your colleagues on occasion, but these are deep, moral, philosophical, and legal disagreements. So my question is, every day you have to go back and iterate with them and every day there’s another case. And so how do you manage the tenor of the conversation and kind of lower the temperature to generate buy in and have them keep coming back to the discussion?
SONIA SOTOMAYOR: It’s actually– come on up and you’ll take a picture while I’m talking. It’s one of my favorite stories is we were at lunch one day at the Supreme Court and someone was bringing up a book that was very popular at the time, about the open hostility among justices during FDR’s time.
The justices there spoke badly about each other to the press and with attribution. So it wasn’t hidden. Many of them wouldn’t have lunch together. If they met in the hallway, they would separate and walk somewhere else. And who– where’s the cameras? One of you friends of his take a picture.
[LAUGHTER]
Anyway.
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And one of my colleagues asked, when did that change and why? And one other colleague mentioned, one Chief Justice, another mentioned another Chief Justice. And Ruth Bader Ginsburg in her very quiet but commanding voice in the corner said, it was when a woman came to the court.
And she meant Sandra Day O’Connor. And Sandra who had been a politician and I don’t know how much many of you might or might not know about her, very successful politician in Arizona, Republican. But she was renowned for crossing the bridge with Democrats. She was the first of many politicians who really believe that our job as politicians or their job was to work together and find compromises to better the society.
She came to the court and she got many titles. Where Sandra went, the court went. She was very much the middle of the court, but she was also the bridge builder on the court. And she insisted that the justices have lunch together. And if somebody missed too many lunch meetings, she would go to their office and a number of my colleagues told me this story, she would walk in unannounced, plot herself opposite you and say, why have you been missing lunch?
And whatever lame excuse you gave her, she would look at you and say, not acceptable. You have to. We are part of one court. And that means we will always be civil to one or another and be friends to one another and she would pick that justice up and drag them to lunch.
Justice Souter when I came aboard, I was his successor. I hate using that word because he’s such a giant, was such a giant of a jurist. No one could ever fill his shoes. But Justice Souter said to me in one of our earlier conversations, he was been a wonderful mentor while I’ve been on the court. He looked at me and he said, Sonia, I was really agitated with my colleagues often.
And one day I had an insight and that insight was that they are as passionate about what they believe, about the constitutions, 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 there have been or women but men of ill will. It’s because our passions are different.
Once I understood that it was easier to work with them, and what I have found was taught to me by my mother, which was I add to that by saying, if you look for the good in people, you can deal with the bad more easily. I did that when I was a judge on the district court.
I would always try to find whatever good there might be in every defendant. And whether it was the killer whose child loved them, whether it was the man who had a neighbor who sent me a letter to say, I know he’s done some horrible things, but when I’ve been in need, he brings me food or when I’ve needed to go to a doctor’s appointment, he would help me get there. I would look for that humanity to try to balance whatever rage I might have at their acts.
And certainly, it never got them off from suffering punishment. I would always give a sentence commensurate with the crime, but I would never let the act define the person alone. Good people do bad things all of the time. How often have your parents said to you, I love you but I don’t like what you did. We do that all the time.
And so it’s the same thing with my colleagues, believe it or not. I try– I have with every one of them a human relationship. Clarence Thomas and I can spend outside the hallways either after lunch or leaving a conference talking about life, about a situation that has happened. I’ve often told people– you can think of whatever you want about Clarence Thomas’s jurisprudence.
He and I disagree the most on the court. There’s an organization– is it here at Berkeley, somebody does? SCOTUSblog. Somebody does those statistics. OK. And yet, I can tell you that Clarence is the only justice who knows the name of every employee in the Supreme Court.
And not only knows their names but knows about their families and knows when a tragedy has happened, and will be walking and he’ll say, you know, that person just lost their mother. That person just lost their wife. That person is suffering from this.
I can have a very civil conversation with him even though I have very passionate legal discussions. And it’s the way that if you try to remember, commonality of humans, that we made– the color of our skin may be different, our gender certainly is, the color of our eyes, the tone of our– accent of our voices, but virtually everyone is committed to family. Is committed to some values that are fundamental to us as human beings.
And once you lose sight of that, then we become the divided country we’ve grown into. We see first the bad things we don’t like and forget that it’s people who share similar needs as we do. So that’s how I lower the temperature. And they know. They’ll look at me and sometimes say, OK, Sonia’s going to get passionate. And I’ll look at them and I’ll say, yeah, and there’s a reason and I’ll go right into it.
ERWIN CHEMERINSKY: All too soon. Our hour with Justice Sotomayor has come to an end. Please join me in thanking my hero, Justice Sonia Sotomayor.
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