Sotomayor: Most Satisfying Professional Moment “Convinc[ing] a Colleague” To Change Mind. Was it Fisher?

October 25th, 2014

In remarks at the University of New Hampshire, Justice Sotomayor explained that her “most satisfying professional moment” has been “convinc[ing] a colleague” to change his or her mind:

Questions included what was the first thing she did after being confirmed on the high court (she went to a friend’s “and I collapsed for a month”) and what her most satisfying professional moment has been.

She answered the latter by saying she couldn’t give the full details of her most satisfying professional moments “but they’re usually when you can convince a colleague to change” their mind on an issue that you feel strongly about.

“The reality is, it doesn’t happen that often,” Sotomayor said. That’s because before the justices actually vote, they’ve all read the briefs and studied the issues and “we’re pretty well-prepared.”

“By the time we got to oral arguments, if you haven’t convinced us in you’re brief, you’ve made a big mistake,” she said.

This is an interesting revelation, as Joan Biskupic’s recent book highlighted the fact that it is not Sotomayor’s preference to try to persuade other Justices. Her colleagues described her as “solo operator.” This is in stark contrast to the “shrewd tactician” Elena Kagan.

Yet, we see that Sotomayor was able to convince her colleagues not to invalidate the UT affirmative action program, and pushed the majority in Fisher to duck the issue with her dissent. I wonder if this is the case she talks about as the “most satisfying professional moment” of her career.

As an aside, I’m still not sure how her Fisher ploy worked, as Sotomayor ultimately published her dissent in Schuette, and the other Justices took public umbrage to it–Chief Justice Roberts in particular who was offended to being called out of touch. After some more thought, I suspect this may be akin to the Court’s decision to order reargument in Citizens United in the face of a dissent from Justice Souter that the Court invalidated the law, even though the argument was not briefed. In Fisher, Bert Rein specifically did not ask the Court to overturn Grutter, so it may have been a bridge too far. This is keeping with what Richard Re has called the Doctrine of One Last Chance. I think the parts of Sotomayor’s dissent that persuaded the Justices never made it into Schuette. I can’t imagine any Justices were persuaded to change their minds by being called out-of-touch.