Dorf on the spat between Ginsburg and Sotomayor in Bauman

January 23rd, 2014

I previously blogged about the back-and-forth between Justices Ginsburg and Sotomayor in Bauman over the scope of 1952 case of Perkins v. Benguet. Mike Dorf sheds some light on what may have happened here:

 For example, Josh Blackman nicely captures the substance and tone of the exchange–including dueling accusations that the other side is dishonestly reading either prior cases or the record–and also notes a prior occasion when other Justices have made similar accusations against Justice Sotomayor.

Moreover, the testiness is most testy over how to read the somewhat cryptic 1952 case of Perkins v. Benguet.  It’s hard to see why anyone would get especially exercised about such an arcane question, unless there was some pre-existing animosity.

So, what’s the deal?  Are eight Justices ganging up on Justice Sotomayor because of her tendency at oral argument to interrupt lawyers before they are finished answering questions posed by her colleagues?  Did Justice Sotomayor take more than her fair share of nuts from the communal candy dish at the Court’s holiday party?

Before everyone gets too excited, let me suggest a more banal explanation. The most pointed digs in the respective opinions appear in footnotes.  The footnotes in the Ginsburg majority opinion that respond to the Sotomayor opinion would have likely been added after the other Justices had joined in Ginsburg’s opinion. And although the Ginsbug footnotes are hard-hitting, they don’t exactly come right out and say “Justice Sotomayor is a liar”, so it’s not surprising that the seven Justices who joined Ginsburg’s opinion did not thereafter beseech her to remove the tough footnotes.

Put differently, Justice Sotomayor probably “started it”, and did so entirely on the merits:  she was worried that the majority opinion was constraining plaintiffs’ rights to sue.  Meanwhile, Justice Ginsburg may well have taken some offense at the accusation, both as a civil procedure expert and as someone who sees herself as sympathetic to plaintiffs.  From there, things could have easily escalated as each of the Justices’ respective law clerks looked for any ammunition they could find.  Of course, each Justice bears responsibility for accepting what her respective law clerks may have proposed adding to the footnotes, but it is easy to imagine that no one was paying all that much attention to the tone of the footnotes.

So yes, it’s possible that some of the snark reflects underlying personal tensions, but the case is no smoking gun.