Fiery Draft Dissent by Sotomayor Influenced Race Case, New Book Says

By Mark Walsh — October 10, 2014 3 min read

A new book says U.S. Supreme Court Justice Sonia Sotomayor circulated a fiery dissent two terms ago after a tentative majority on the court planned to rule against a race-conscious admissions plan at the University of Texas at Austin.

But instead of a 5-3 decision striking down the plan, lengthy debate within the court—prompted by Sotomayor’s draft dissent—led to the 7-1 decision in 2013 that sent the case back to a federal appeals court for greater scrutiny, says author Joan Biskupic in the new book, Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice (Sarah Crichton Books/Farrar, Straus and Giroux).

Sotomayor withheld her fire and even joined the majority opinion by Justice Anthony M. Kennedy in Fisher v. University of Texas at Austin, a ruling that was regarded when it came out as modest, settling little in the debate over affirmative action in education.

“Sotomayor, who had come on so strongly at the start” with her draft opinion defending the consideration of race, “became satisfied with Kennedy’s retreat in his succession of draft opinions,” writes Biskupic, a veteran reporter covering the Supreme Court who is now the chief legal affairs editor of Reuters wire service.

One term later, the court ruled 6-2 to uphold a Michigan ballot initiative that bars race-based preferences in admissions at the state’s universities. Sotomayor’s dissent in Schuette v. Coalition to Defend Affirmative Action attracted wide attention for stressing that race still matters in America and for the personal stamp that she put on the opinion.

“Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’, regardless of how many generations her family has been in the country,” Sotomayor wrote in Schuette. “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”

Biskupic says in footnotes that Sotomayor declined to provide information about the behind-the-scenes debate in the Fisher case, but that other “justices from both sides of the ideological divide revealed elements of the discussion and the evolution of draft opinions on the condition that information not be attributed to them.”

“Internal court documents are kept secret, so a full understanding of the give-and-take remained elusive,” Biskupic writes. “It was plain, however, that the [Fisher] case that was argued in October 2012 and seemed headed in one direction took a major turn because of Sotomayor.”

When these justices were asked by Biskupic, sometime last term, about the attitude Sotomayor had expressed in her draft Fisher dissent, they “intimated that it would be revealed in the then-pending” Michigan case. In other words, Sotomayor used some or all of her draft Fisher dissent in her Schuette dissent.

Biskupic began her book project soon after Sotomayor took her seat on the Supreme Court in 2009. The nation’s first Latino justice was planning her own memoir, My Beloved World, which came out in 2012 to rave reviews for its deeply personal reflections. But Sotomayor’s book largely stops short of when she joined the federal bench as a U.S. district judge in Manhattan.

Biskupic’s book examines Sotomayor’s rise from public housing in the Bronx to the Supreme Court in the context of the growing political power and accomplishments of Latinos in the United States.

Biskupic opens her book with a scene from 2010, when Sotomayor shook up her first end-of-term Supreme Court employees’ party. After the justices’ clerks had performed their “tame” skits skewering their bosses, Sotomayor broke with longtime protocol of the event by playing salsa music and coaxing some of her reluctant fellow justices into cutting a few salsa steps on the oriental rugs of a regal court conference room.

At the end of the party, Biskupic writes, Justice Antonin Scalia joked to people passing him on the way out, “I knew she’d be trouble.”

A version of this news article first appeared in The School Law Blog.

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