Justice Sotomayor’s “Sister Souljah” moment

One of the most challenging jobs in politics is giving a speech to people who support you wherein you say something your supporters don’t want to hear—but need to hear. We even have a name for it: a “Sister Souljah” moment. The label refers back to a speech by President Bill Clinton to Jesse Jackson’s Rainbow Coalition, when he criticized an African-American hip-hop artist (Sister Souljah) for her extreme rhetoric during the 1992 riots in Los Angeles.

Supreme Court Justice Sonia Sotomayor deserves appreciation for her recent appearance at the American Constitution Society, where she said some things worth saying, even if the liberal lawyers in the audience were not excited to hear them.

First and foremost, Sotomayor praised Justice Clarence Thomas, the senior conservative on the bench who has been under incredible fire of late. After acknowledging that she and Thomas sit at opposite ends of the jurisprudential spectrum, Sotomayor said her colleague is the one justice who knows the name of every single person in the Supreme Court building. Not only that, “He remembers their families’ names and history. He is the first one who will go up to someone when you are walking with him and say, ‘Is your son OK? How’s your daughter doing in college?’” In other words, Sotomayor said he not only “cares deeply about the court as an institution” but also “about people,” real flesh-and-blood people. Even though Thomas has “a very different philosophy of life” than her own, Sotomayor acknowledged his genuine kindness and understanding and called him a “friend.”

Thomas has been under intense criticism related to his wife Ginni’s political activities, which have become wrapped up in the investigation into the events at the U.S. Capitol on Jan. 6, 2021. Pleasing the political left, Palm Beach County, Fla., State Attorney Dave Aronberg recently told MSNBC that Ginni Thomas could face criminal liability for her role. Democratic members of Congress are calling on Clarence Thomas to resign from the court because of his wife’s activism. For Sotomayor to call him a friend and a genuinely kind person at such a moment took a bit of courage.

Now more than ever, we need the liberal justices on the court to speak with moral clarity and real conviction to protect the integrity of the institution. We need to hear from Justices Sotomayor, Elena Kagan, and Stephen Breyer, condemning the radicalism that would put their colleagues’ lives in danger, call for security around justices’ minor children, and have their private home addresses published on the internet, permanently endangering them and their families. Sotomayor’s remarks are praiseworthy, but we need to hear more from her and her colleagues in defense of the institution and their fellow justices.

Sotomayor also deserves credit for acknowledging that overturning precedent works both ways. She said that the court is made up of human beings, human beings make “mistakes,” and legal outcomes can change over time. She cited the example of Dred Scott and Plessy v. Ferguson, two Supreme Court cases that denied equal rights to African-Americans but were ultimately corrected by the 13th Amendment and Brown v. Board of Education.

The role of precedent and stare decisis (the legal doctrine of deferring to prior decisions) predictably played prominently in the recent Dobbs decision. Some justices are very protective of precedent, and some are very open to rethinking prior cases. The goal should be consistency. One cannot swear precedent is sacred when you like the point previously decided but encourage judicial open-mindedness when you don’t like the old holding. Sotomayor’s comment, taken in its best light, is an honest acknowledgment that stare decisis works both ways.

Finally, Sotomayor showed up at the American Constitution Society in the first place, which is not without its controversy. The ACS is the liberal equivalent of the conservative-leaning Federalist Society, which is much larger and more well-established and is often credited as the bogeyman behind the current conservative majority on the court. There was a concerted effort a year ago by liberals to pass an ethics rule barring judges from joining either the ACS or Federalist Society. The rule died a well-deserved death, but Justice Sotomayor’s appearance at the almost-outlawed ACS reminds us that we benefit from a judiciary that is actively connected to practicing attorneys and the general public.

I find myself much closer to Justice Thomas than Justice Sotomayor on questions of law, but I will give her deserved plaudits for saying something nice about her colleague when it would have been easy to keep her head down. That’s a good example for us all.