A piece by David Fontana in The New Republic argues that Sotomayor has become the face of the Supreme Court’s legal wing. How you ask? Well not through advancing any theories on the Court.
Legal theories may or may not matter in convincing the public to agree with certain jurisprudential views. Regardless, it is worth noting that Sotomayor has not yet articulated a new theory of her own. Instead, her contribution in this realm—and it could be a substantial one—might end up being persuading the public to adopt a familiar view of the law that prioritizes how the legal system affects regular people.
What about Justice Breyer, whom I dubbed the new leader of the liberal wing of the Court following McDonald?
. Justice Stephen Breyer has been the leading spokesperson for liberal constitutionalism of late; he has written two important books articulating his jurisprudence and has appeared in the popular media and in debates with Scalia defending his theories. But Breyer has tended to engage in more academic and technical discussions. His most noted public appearances are often at law schools, universities, or think tanks.
The rest of the piece discusses speeches that Sotomayor has given at–like Breyer–law schools, explaining her views of the law.
It is still early in her tenure, but these are all good reasons for liberal constitutionalists to feel encouraged by Sotomayor. The substance of what she says and stands for might be familiar, but her style in communicating that substance seem to be making it newly appealing. This bodes well for the liberal wing of the Court, which has been waiting years for an effective voice to promote its views to the general public. Here’s hoping it has finally found a voice with staying power.
Earlier this year I urged caution about proclaiming Sotomayor as the new liberal scion. I still urge caution. If anything, she has exhibited some conservatism, and at best left of center, moderation. She has joined the law & order bloc, along with Roberts, Kennedy, Breyer, and Alito, voting to uphold invasive police practices. She was the only liberal justice to join the majority opinion in Sorrell v. IMS Health, over Justice Breyer’s vociferous Lochner dissent. Along with Justice Kagan, she joined the majority opinion in Davis v. United States, adopting a cramped view of the exclusionary rule, over a dissent from Justices Ginsburg and Breyer.
This piece reeks of wishful thinking for Sotomayor to rise to the occasion, and (in my mind proper) dissatisfaction with Justice Breyer as a leader of the ideological wing (I am co-authoring an Op-Ed on just that point).
Let’s revisit this issue again next term, as I’m sure we will.
More from my frequent co-author Corey Carpenter, who recently launched his own blog.