Rewriting Race: Justice Sonia Sotomayor and the Power of Dissent

Click to increase image sizeClick to decrease image size

Acknowledgments

The journey to this article was characterized by several twists and turns. The author would like to extend tremendous gratitude to Naomi Andrews for her invaluable insights and contributions to this manuscript from its earliest phases to its final publication. In addition, Khanum Shaikh, Sylvanna Falcón, Elora Chowdhury, Dana Collins, Molly Talcott, CiAuna Heard, and Margaret Hunter each offered crucial feedback on the manuscript as it evolved. A special thank you to the 2020 African American Policy Forum Critical Race Theory Summer School and the College of Arts and Humanities 2020 Twin Pandemics Forum, two events which created opportunities to plant the seeds of this project. This article would not have been completed without the support of several incredible student research assistants: Molly Mcgeehan, Sean Scanlon, Carmen Ocacionez, and Emma Sanmaniego. Lastly, love and eternal gratitude to my father who always encouraged me to use my voice.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

¹ The shadow docket refers to unsigned emergency decisions that are rendered by the Court summarily, without full briefing or hearing, a practice which has been on the rise in significant decisions.

² Justice Sotomayor has authored upwards of 115 dissents during her tenure on the Court from 2009 to the present (Feldman). The dissents examined in depth in this paper were issued between 2014 and 2023, a period marked by increased dissent from the liberal wing of the Court, and selected because of their explicit references to race-based harm.

³ Judge Sotomayor is one of the most experienced judges to be confirmed to the Supreme Court in its history with a three decade long career encompassing multiple areas of legal practice and seventeen years of judicial service.

⁴ This is a shortened reference to a writ of certiorari which is the most common mechanism by which the Supreme Court agrees to hear a case.

⁵ Through the increased circulation of dissent language and commentary in the public domain via social media, podcasts, and other media outlets, the potential for this type of speech to reach and impact wider audiences is even further augmented.

⁶ A plurality opinion refers to an opinion that has the most votes of the Court but not a majority.

⁷ This doctrine encompasses the principle that the majority may not suppress the minority’s right to participate on equal terms in the political process.

⁸ Justice Sotomayor states specifically in a footnote in Schuette that she elects not to use the term “affirmative action” and instead the term “race sensitive admissions policies” (Sotomayor dissent page 2, footnote 2).

⁹ While the majority in Trump v. Hawaii repudiates the Korematsu decision, scholars have argued that the decision perpetuates the same reasoning. See, for example, Neal Kumar Katyal, “Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu,” Yale Law Journal, vol. 128, 2019.