"... I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague."

Said Justice Sotomayor, quoted in "Justice Sonia Sotomayor issues unusual apology over 'hurtful' remarks about colleague Brett Kavanaugh/The liberal Supreme Court justice had criticized her conservative colleague while she was talking about an opinion he wrote last year in an immigration case" (NBC News).

Here's the statement for which she apologized: "This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour." 

You can see the context at the link. She didn't call the "man" by name — it was Kavanaugh — and she didn't even say he lacked empathy. She didn't even assert that he lacked experience with the working class. She didn't even say he probably doesn’t know anyone who works by the hour. She only said he probably doesn’t really know anyone like that. 

To really know someone... that takes a lot. That's a high standard! She apologized for only saying that he probably didn't meet a high standard. Why apologize then?

Perhaps it's an effort to appear especially virtuous herself, but perhaps the motivation is to stop Kavanaugh supporters from getting lots of attention coming forward with accounts of his interactions with working class people. Kavanaugh has volunteered to serve the poor through Catholic Charities, he's done tutoring, and he's coached youth basketball in the Catholic Youth Organization league. This was widely reported during the confirmation hearings but that was years ago. It could all be laid out again, in detail, and with hooting at Justice Sotomayor. Some might ask whether Justice Sotomayor has done equivalent charity and service to the poor and working class. Better to apologize.

"Of all the genres of unsatisfying nonfiction, books by Supreme Court Justices may be at the top of the heap."

"One subset is the memoir that focusses on the Justice’s early life, ending before confirmation. Justice Sonia Sotomayor’s 'My Beloved World,' Justice Ketanji Brown Jackson’s 'Lovely One,' and Justice Clarence Thomas’s 'My Grandfather’s Son' are examples. These can be gripping narratives and helpful to understanding a Justice’s formative years, but by definition they omit what readers most want to know: what the Justice did on the Court and why she did it. Another category is the learned disquisition on the law, as in Justice Neil Gorsuch’s 'A Republic, If You Can Keep It' and Justice Stephen Breyer’s 'Reading the Constitution.' These, too, fall short of readers’ hopes, for the simple reason that the authors resist any temptation to rule and tell. They write about their understanding of the law and the judicial process, but when it comes to their dealings with colleagues they remain resolutely circumspect. Barrett’s book is a mashup of the two forms: memoir and personal reflection are interlaced with explanations of legal doctrine. (Her grandmother’s unwritten recipe for shrimp remoulade provides a jumping-off point for discussing the benefits of a written constitution: 'Unwritten constitutions, like unwritten recipes, can be hard to pin down.')"

Writes Ruth Marcus, in "How the Supreme Court Defines Liberty/Recent memoirs by the Justices reveal how a new vision of restraint has led to radical outcomes" (The New Yorker).

This definitely gets my "unread books" tag (though I did read, a blog about, "My Grandfather's Son"). 

Marcus gives the Justices credit for writing "about their understanding of the law," but do they? How could they really?

Here's my old post "What I really think about the Clarence Thomas book" (from October 2007). I sort of "live-blogged" my reading of that book, and along the way, I was "accused both of fawning over him and of obsessively hating him," but, I said:

"What did you think of that Supreme Court oral argument?"/"I'm enjoying learning about the parts of speech."

That's a snippet of phone conversation between Meade and me — my question, his answer — as we'd been listening separately, through headphones, as we were walking toward our meeting spot in the lakeshore woods. 

From the concordance to the transcript of the argument in Learning Center v. Trump:

noun [5] 16:19 52:3,25 53:

20 85:22 ...

verb [9] 11:25 16:10 40:8 

52:3,11 53:20 100:13 135:

4 176:21

verbs [29]11:25 12:2,7 16:

19 28:16 29:3,16,22 30:2

Context: 

GENERAL SAUER: Dames & Moore... said, this particular provision, where Congress has given these broad verbs, I mean, "regulate" is a capacious verb, admittedly, so are "nullify," so are "void," so are, frankly, all the other verbs there in the -- the language in IEEPA. 

"Mr. Boyd had chosen the nitrogen method over lethal injection in 2018, when prisoners were given a month to choose. But..."

"... he later challenged its use, arguing earlier this year in court that the method was cruel and that the state’s protocol was inadequate.... Lee Hedgepeth, a journalist in Alabama who witnessed the execution, said he counted Mr. Boyd gasp for air more than 225 times before he was pronounced dead.... [Dissenting in the Supreme Court case], Justice Sotomayor urged people to open the stopwatch app on their phone and run it until it reached four minutes. 'Now imagine for that entire time, you are suffocating,' she wrote. 'You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas.'"

From "Lengthy Execution by Nitrogen Gas in Alabama Renews Concerns Over Method/Anthony Boyd was the eighth person executed by nitrogen gas since Alabama began using the method last year. His execution came over the strenuous objection of three liberal Supreme Court justices" (NYT)

Boyd, in his last words, insisted that he was innocent. The victim died "bound and taped to a park bench... doused... in gasoline and lit... on fire." 

"Every time I listen to a lawyer-trained representative saying we should criminalize free speech in some way, I think to myself, that law school failed."

Said Sonia Sotomayor, quoted in "Sotomayor rebukes calls to 'criminalize free speech' in apparent swipe at Pam Bondi/The justice, in public remarks, didn’t name the attorney general, who has come under fire for comments to target people over 'hate speech'" (Politico).

And so ends the decades long push — by the left — to criminalize hate speech. Thanks, Justice Sotomayor!

"Justice Brett M. Kavanaugh.. opined that race can be considered along with other factors in forming reasonable suspicion to stop someone for an immigration check..."

"... such as where people are gathering and what jobs they are working. 'To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a "relevant factor" when considered along with other salient factors,’ Kavanaugh wrote. The court’s three liberal justices sharply dissented. 'We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,' Justice Sonia Sotomayor wrote in the dissent. 'Rather than stand idly by while our constitutional freedoms are lost, I dissent.'"

From "Supreme Court lifts limits on immigration raids in the Los Angeles area/The raids sparked major protests in Southern California. President Donald Trump deployed troops from the California National Guard and Marines in response" (WaPo).

"The Trump administration can move forward with plans to slash the federal work force and dismantle federal agencies, the Supreme Court announced on Tuesday...."

"The case represents a key test of the extent of President Trump’s power to reorganize the government without input from Congress. The justices’ order is technically only temporary.... But in practice, it means he is free to pursue his restructuring plans, even if judges later determine that they exceed presidential power. In a two-paragraph order, the justices wrote that they had concluded that “the government is likely to succeed on its argument” that President Trump’s executive order announcing plans to downsize the government was legal...."

The NYT reports.

Only Kentanji Brown Jackson dissented. Justice Sotomayor filed a concurring opinion. She says:

"Her opinions, sometimes joined by no other justice, have been the subject of scornful criticism from the right and have raised questions about her relationships with her fellow justices, including the other two members of its liberal wing."

Writes Adam Liptak, in The New York Times, about Ketanji Brown Jackson.

“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Justice Barrett wrote, in an opinion [in Trump v. CASA] signed by all five of the other Republican appointees.

“The principal dissent focuses on conventional legal terrain,” Justice Barrett went on, referring to Justice Sotomayor’s opinion. “Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”...

I think Liptak is trying to build Jackson's reputation. He writes things like: "Justice Jackson has appeared comfortable expressing herself from the start." He compares her to Justice Breyer and Justice Brandeis:

“I was frightened to death for the first three years,” Justice Breyer said in a 2006 interview. Even Justice Louis D. Brandeis, a giant of the law who sat on the court from 1916 to 1939, needed time to find his footing. “So extraordinary an intellect as Brandeis said it took him four or five years to feel that he understood the jurisprudential problems of the court,” Justice Felix Frankfurter wrote of his friend and mentor. 

That does not work as a compliment to Jackson.

ADDED: The Washington Post just published a similar article, "One of the Supreme Court’s sharpest critics sits on it/Justice Ketanji Brown Jackson emerges as a strong voice on an unusually fractious U.S. Supreme Court."

New Supreme Court cases this morning.

Follow the live-blogging at SCOTUSblog, here.

UPDATE 1: "Justice Gorsuch has two opinions today. The first is Ohio v. EPA, the EPA 'good neighbor' policy case."

UPDATE 2: The second case is Harrington v. Purdue Pharma, a bankruptcy case: "[W]ord games cannot obsure the underlying reality... the Sacklers seek greater relief than a bankruptcy charge normally affords, for they hope to extinguish even claims for wrongful death and fraud, and they seek to do so without putting anything close to all their assets on the table." That's Gorsuch, writing for the majority, joined by Thomas, Alito, Barrett, and Jackson. An unusual grouping. The dissent is written by Kavanaugh, joined by Roberts, Sotomayor, and Kagan.

UPDATE 3: SEC v. Jarkesy. SCOTUSblog says: "The court framed the issue as whether the Seventh Amendment allows the SEC to compel Jarkesy to defend himself before the agency rather than before a jury in federal court. The court holds that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial." It's 6-3, and the grouping is the usual grouping. From the dissent, by Sotomayor: "Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, known as a public right." Gorsuch writes a concurring opinion, joined by Thomas, to say that it's not just about the Seventh Amendment. Also at play are Article III and the Due Process Clause. He writes: "The new law gave the SEC's Commissioners — the same officials who authorized the suit against Mr. Jarkesy — the power to preside over his case and issue the judgement." Yes, the case went to an "administrative law judge," "But the title 'judge' in this context is not quite what it might seem."

UPDATE 4: Finally, it's the abortion case that got leaked yesterday, Moyle v. Idaho. As expected, the writ of certiorari is dismissed as improvidently granted, and there are various opinions. Jackson concurs in part and dissents in part. Kagan concurs, joined by Sotomayor and in part by Jackson. Barrett, joined by Roberts and Kavanaugh, concurring, "agree with the decision to dismiss it because of the extent to which, in their view, the case has changed since they agreed earlier this year to take it up. Moreover, they note, there is now a 'difficult and consequential argument' in the case about whether the constitution would allow Congress to require Medicare recipients to 'violate state criminal law.'" 

AND: In Moyle, Alito dissents, joined by Thomas and Gorsuch.

"A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country."

The Supreme Court rules, in Department of State v. Muñoz, a 6-3 decision written by Barrett. 

There's a concurring opinion by Gorsuch.

The dissenting opinion by Justice Sotomayor begins:

"Six decades ago, this Court held that a government entity’s 'threat of invoking legal sanctions and other means ofcoercion' against a third party 'to achieve the suppression' of disfavored speech violates the First Amendment...."

"Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim."

Writes Justice Sonia Sotomayor for a unanimous Supreme Court, in National Rifle Association v. Maria Vullo, issued this morning.

Justice Gorsuch adds a very concise concurrence:

"There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days. And there are likely to be more."

Said Justice Sonia Sotomayor, quoted in "Justice Sotomayor Describes Frustration With Being a Liberal on the Supreme Court/In a conversation at Harvard, the justice spoke of her despair at some of the court’s decisions, but she urged optimism and a focus on future generations" (NYT).

“There are moments when I’m deeply, deeply sad,” she said, without citing any specific cases. “There are moments when, yes, even I feel desperation. We all do. But you have to own it, you have to accept it, you have to shed the tears and then you have to wipe them and get up.”

"Do you think that someone who is a drug addict is absolutely incapable of -- that all people who are drug addicts are absolutely incapable of refraining from using drugs?..."

"All right. Then compare that with a person who absolutely has no place to sleep in a particular jurisdiction. Does that person have any alternative other than sleeping outside?... They have... none. They have absolutely none. There's not a single place where they can sleep.... So the point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside."

Said Justice Alito, in yesterday's oral argument in City of Grants Pass v. Johnson. There's a precedent, Robinson v. California, that found it to be cruel and unusual punishment to make a crime of the "status" of drug addiction. The 9th Circuit said that the city — by prohibiting sleeping outdoors — had made a crime out of the status of homelessness.

For more detail, see the SCOTUSblog coverage: "Court divided over constitutionality of criminal penalties for homelessness."

"I thought Democrats had learned a lesson from the Ruth Bader Ginsburg episode.... Building a cult of personality around one particular justice..."

"... served to reinforce the idea that it was reasonable for her to stay on the bench far into old age.... All liberals have to show for this stubbornness is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had indeed learned their lesson—not only was there a well-organized effort to hound the elderly Stephen Breyer out of office, but the effort was quite rude. (I’m not sure screaming 'Retire, bitch' at Stephen Breyer was strictly necessary, but I wasn’t bothered by it either—he was a big boy, and he could take it.) But I guess maybe the lesson was learned only for instances where the justice in question is a white man."

Writes Josh Barro, in "Sonia Sotomayor Should Retire Now/If she leaves the Court this year, President Joe Biden will nominate a young and reliably liberal judge to replace her" (The Atlantic).

The link on "kitsch home decor" goes to an Etsy page for a $20 item called the Our Lady of Dissent Prayer Candle.

I'm not quoting this because I agree with it. I shouldn't have to say that, but I just watched Don Lemon charge Elon Musk with responsibility for words Musk had simply quoted. When I quote something, I might mean let's talk about this or this is crazy or this is articulated colorfully. 

"Thursday’s case arose from a December ruling from the Colorado Supreme Court disqualifying Mr. Trump from the state’s Republican primary ballot..."

"... based on Section 3 of the 14th Amendment. The provision was adopted after the Civil War to bar insurrectionists who had taken an oath to support the Constitution from holding office.... Mr. Trump has attacked the Colorado court’s ruling on at least a half-dozen grounds, though their unifying theme is that the election should be decided by the voters...."

The NYT describes the case — Trump v. Anderson — that is up for oral argument in the Supreme Court this morning.

You can listen in real time at the Court's website, here.

UPDATE: I listened to the entire argument in real time, and I have some things I want to say that require the transcript, but I did think that the conservative Justices accepted the argument that the President is not covered by the text of Section 3 of the 14th Amendment. And I believe that both Kagan and Jackson were concerned about letting the states decide this matter of such great national interest. Sotomayor wasn't strong on the other side. After the beginning, she was quiet for a long time, then spoke up and sounded, I'm sorry to say, lost.

“Justice Sonia Sotomayor said she’s 'tired' and 'working harder than I ever had'.... 'And to be almost 70 years old, this isn’t what I expected.'"

Bloomberg reports on an appearance at UC Berkeley law school. 

"Cases are bigger. They’re more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I’m tired,” she said. “There used to be a time when we had a good chunk of the summer break. Not any more. The emergency calendar is busy almost on a weekly basis."...

It's not just the amount of work. After a prompt about how law students feel discouraged, she said:

"I live in frustration. Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting."

"Asian Americans, the group whom the suit was supposedly about, have been oddly absent from the conversations that have followed the ruling...."

"During the five years I spent covering this case, the commentators defending affirmative action almost never disproved the central claim that discrimination was taking place against Asian Americans, even as they dismissed the plaintiffs as pawns who had been duped by a conservative legal activist. They almost always redirected the conversation to something else—often legacy admissions...."

Writes Jay Caspian Kang in "Why the Champions of Affirmative Action Had to Leave Asian Americans Behind/The original concept in pursuit of diversity was vital and righteous. The way it was practiced was hard to defend" (The New Yorker).

"The Court holds that the First Amendment bars Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees."

SCOTUSblog announces.

Here's the opinion.

It's a 6-3, conservative/liberal split. Gorsuch writes. No concurring opinions. One dissenting opinion, by Sotomayor.

From the Gorsuch opinion for the majority:

Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.

The business in question is a website design firm (owned by Lorie Smith) that offers customized "text, graphic arts, and videos to 'celebrate' and 'conve[y]' the 'details' of [a wedding couple's] 'unique love story.'"

Whatever happened to the affirmative action concept of "critical mass"?

From the majority opinion in the new case, Students for Fair Admission v. Harvard:

The principal dissent’s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Court upheld a “sui generis” race-based admissions program used by the University of Texas, 579 U. S., at 377, whose “goal” it was to enroll a “critical mass” of certain minority students, Fisher I, 570 U. S., at 297. But neither Harvard nor UNC claims to be using the critical mass concept—indeed, the universities admit they do not even know what it means. See 1 App. in No. 21–707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I’m not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from Harvard administrator).

But the dissenting opinions never use the term "critical mass."

The only other mention of "critical mass" is in the concurring opinion by Justice Gorsuch:

Following Bakke, this Court declared that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Grutter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference.... Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter, 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher, 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter, 539 U. S., at 335–336 (internal quotation marks omitted).

So is "critical mass" something no one believes in anymore? Here's how I — as a lawprof teaching these cases — explained it a decade ago:

Watching the Supreme Court. [ADDED: Supreme Court makes a moderate, minimalist change to affirmative action doctrine.]

 At SCOTUSblog.

"We have the university cases."

"The court holds that Harvard and UNC's admissions programs violate the equal protection clause of the 14th Amendment."

The Chief Justice wrote the opinion. The question is how moderate/extreme is it. 

I'm just hanging on the SCOTUSblog feed.

Ah.. no... wait: Here's the opinion.

Excerpt from syllabus:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice. Pp. 39–40.

The decision must be somewhat moderate, I'm inferring, because there are concurring opinions from Thomas, Gorsuch, and Kavanaugh. 

The Chief quotes Grutter — "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today" — and adds: