Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett attempted to distance themselves from political parties and particular presidents on Feb. 23 with the former describing parties as “the worst thing” to happen to the judiciary.
“I think the worst thing to happen to the judiciary is political parties, and—at a certain point—political parties decided to take conversations that were occurring between and among judges and academics about how best to approach interpretation of the Constitution and statutes,” Justice Sotomayor during the National Governors Association (NGA) Winter Meeting in Washington.
“They began to adopt our buzzwords as buzzwords—some of the discussions we were having like on originalism and plain text and things like that. But instead of discussing those terms with respect to approaches that made sense and why—with all the nuances that those approaches contain—they just began to label people according to the buzzwords.”
She added that the labeling doesn’t “do justice” to the fact that the justices agree on “many” cases. “And not just between her and me,” Justice Sotomayor said, referring to Justice Barrett, “but between me and Clarence Thomas, me and Neil Gorsuch, me and all of them—including [Antonin Scalia].”
Her comments came during a joint talk with Justice Barrett on how to “disagree better.” Both justices attempted on Feb. 23 to portray the Court as non-partisan and collegial behind closed doors.
‘Obama’ and ‘Trump’ Judges
She had been asked about Chief Justice John Roberts denying the Court had “Obama judges or Trump judges.”
Justice Barrett similarly said individual justices weren’t beholden to a president or to political parties. “The life tenure does insulate us from politics and so that it’s not just that we’re not Obama judges and Trump judges, but we’re also not Democratic judges or Republican judges,” she said.
“We don’t sit on opposite sides of the aisle,” she added. “We all wear the same color of black robe ... our loyalty lies all to the Constitution and to the Court.”
The Court is currently composed of nominees from five different administrations but has shown agreement in various decisions. Just days before the NGA event, the Court announced two unanimous decisions in McElrath v. Georgia and Great Lakes Ins. SE v. Raiders Retreat Realty Co. Following oral argument in President Trump’s case, observers speculated that the Court seemed poised to strike down the Colorado Supreme Court decision, with Justice Sotomayor being the only potential dissent.
“You hear so much about our deeply divided Court or the 6-3 Court, but when you looked at the docket from last year, I think that might have been true in five cases or so,” Justice Barrett said. “The vast number of cases are unanimous or almost unanimous, and then in the next segment, you have all kinds of different lineups ... sometimes they’re 6-3 in other ways.” She recalled how one of her first dissents on the Court was a 6-3 decision in which she joined Justices Sotomayor and Elena Kagan in opposing the six men on the Court.
The justices’ discussion came at a difficult time for the Court, which is typically thought of as the least political branch of the three outlined by the Constitution. On the days of high-profile cases like former President Donald Trump’s ballot disqualification, bystanders can find intense protests and charged rhetoric near the Court’s front steps on First Street NE.
After overturning Roe v. Wade, the Court saw a historically low trust rating alongside mounting calls for large-scale reforms. Justice Barrett’s confirmation process in 2020 was especially contentious as it followed the death of Justice Ruth Bader Ginsburg, a legend on the left and considered one of the reliable liberal votes on the court. It also reopened old wounds surrounding Republicans’ refusal to vote on then-Judge Merrick Garland’s nomination in 2016 to serve on the Supreme Court.
Justice Barrett recalled how Justice Sotomayor called her on the night of her confirmation vote in October 2020.
“The night of my confirmation vote, I was at the White House, and my cell phone rang,” she said. “The very first call that I got from the Court was from Justice Sotomayor calling to congratulate me and welcome me to the Court.”
‘Family’ Traditions
Both painted the Court as, in Justice Barrett’s words, a “family” where the justices offered small acts of kindness to foster a culture of collegiality.Justice Sotomayor credited Justice Sandra Day O‘Connor for creating a friendly atmosphere, which she contrasted with a more contentious one after former President Franklin Delano Roosevelt added more justices to the Court. Justice O’Connor, she said, made a point of ensuring that the Court had lunch together.
Justice Barrett noted that one of the Court’s traditions is for the second most junior justice to throw a party for whatever new justice is entering. Justice Bret Kavanaugh, she said, threw a party for her while she threw one for Justice Ketanji Brown Jackson.
“You find out that person’s favorite food, you learn something about the person in order to welcome them into what we call our court family,” Justice Barrett said.
Another tradition is that each term, the justices have lunches with the others’ law clerks, Justice Barrett said.
