Sotomayor does not need to resign
Arecent column advocating that U.S. Supreme Court Justice Sonia Sotomayor voluntarily retire ping-ponged so quickly around the mediasphere that it created the false illusion of widespread calls for her to step down.
The reality is neither the Democratic Party nor progressive leaders are pressuring Sotomayor to leave the bench. Instead, elected officials, including the Congressional Hispanic Caucus, have proclaimed their support.
While it would be easy to dismiss this as just another example of talking heads and social media running amok, what we are witnessing is a dangerous, and potentially discriminatory, displacement from the key issue: how do we determine fitness for the most critically important positions in our nation?
Some point to Justice Ruth Bader Ginsburg as justification for their stance. Ginsburg did not heed calls to retire so that President Barack Obama could theoretically replace her with a younger, similarly aligned jurist before he left office. That she tragically died during the Trump presidency is driving exaggerated concern over Sotomayor’s health and potential lifespan.
But the two situations are notably different. Ginsburg had numerous bouts with cancer, finally succumbing to complications from pancreatic cancer at the age of 87 while still on the bench.
By contrast, Sotomayor is not even 70 years old.
Diabetes, while potentially life-threatening, is a condition that affects 11.6% of Americans, with some 2 million people living with Type 1 diabetes, as she has since she was a child.
Sotomayor’s openness about her diabetes, and how she manages it, serves as a role model for many people in the U.S., especially Latinos and other people of color. These populations statistically suffer worse outcomes from this condition.
And her ability to manage the condition is in part due to having better access to health care than the majority of people in this country. Sotomayor shows us that having diabetes need not curb ambition or achievement.
So, what is really going on here? The hand-wringing over Sotomayor’s age certainly diverts attention from the ages and health of the two presumptive presidential candidates.
Perhaps most importantly, it detracts from the crucial conversation we should be having about the questionable practices of members the court and the lack of leadership to implement binding and meaningful ethical standards. Recent guidelines the court issued to self-regulate are paltry at best, and non-binding to boot.
This unprovoked animus against Sotomayor, who has become the senior member of the court’s progressive wing, and the conscience of the court, according to one analyst, is nothing new. When she was nominated to the Supreme Court, Sen. Jeff Sessions led the partisan opposition accusing her of being a “radical” associated with a “racist” organization, the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF, which I lead.
Like her work in our organization’s education committee as a board member, the actions and statements of the one-time Girl Scout have been nothing short of honorable and full of care for those lacking power.
Sotomayor has continually brought her whole self to her jurisprudence on the court, including life experiences that no other justice could bring. Her perspective is not cookie-cutter liberal, and several of her opinions have introduced a unique consideration of circumstances of real people with real limits.
For example, in the 2020 case Our Lady of Guadalupe-School vs. Morrisey-Berru, the court found that Catholic schools could use their First Amendment religious rights to evade liability for employment discrimination when they fired employees who became ill or reached a certain age. Previously, the religious institutions could evade liability only for a narrow “ministerial exception.”
The majority decision, written by Justice Samuel Alito, expanded the exception to teachers who the school claimed taught a module about religion. Sotomayor wrote a dissent joined only by Ginsburg. The “profoundly unfair” decision, she wrote, permits “religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”
Even where she’s joined the majority, she’s written valuable concurrences that highlight obstacles faced by marginalized litigants. When she is no longer serving on the court, this perspective and how today’s dissent may become tomorrow’s majority, is not something that can just be swapped out with a new justice.
If we’re going to set up a fitness test for long-serving government officials, let’s apply it across the three branches of government, and not just cherry-pick a “wise Latina” jurist.
Better yet, restore the Supreme Court’s moral authority through ethical standards that will hold them beyond reproach.
Rosado is president and general counsel of LatinoJustice PRLDEF.