This is very disappointing:
Justice Sonia Sotomayor issued a highly unusual public apology to a colleague Wednesday, saying her criticism of Justice Brett Kavanaugh for his writing in an earlier immigration case was unfair.
“At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate,” Sotomayor said in a statement. “I regret my hurtful comments. I have apologized to my colleague.”
Sotomayor’s statement followed remarks she made last week in Kansas in which she criticized Kavanaugh for his concurring opinion in a high-profile emergency immigration case dealing with ICE patrols — an exceedingly rare and personal comment directed at one justice by another.
Justices, particularly those who wind up dissenting, often snip at how their colleagues on the other side of an opinion frame an issue. But both conservative and liberal justices – including Sotomayor – also regularly discuss the comity on the court and how the nine justices get along personally even as they vehemently disagree in many high-profile cases.
That is what made the tone of Sotomayor’s remarks surprising.
“I had a colleague in that case who wrote, you know, these are only temporary stops,” Sotomayor said, according to a Bloomberg report. “This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”
CNN had reached out to Sotomayor and Kavanaugh for comment after the event. Kavanaugh did not immediately respond to a follow-up request for comment about Sotomayor’s apology on Wednesday.
Sotomayor, the court’s senior liberal, was speaking last week about an opinion in early September in which the court backed President Donald Trump’s push to allow immigration enforcement officials to continue what critics describe as “roving patrols” in Southern California that lower courts said likely violated the Fourth Amendment.
The court’s majority did not offer an explanation for its decision in that case, which came over a sharp dissent from the three liberal justices.
But Kavanaugh, a member of the conservative wing who sided with Trump, wrote in a concurrence to explain his thinking. He said the factors the agents were considering “taken together can constitute at least reasonable suspicion of illegal presence in the United States.” Those factors could include a person’s apparent ethnicity, language or their presence at a particular location, such as a farm or a bus stop.
Sotomayor’s references to the class factors in the case, and their possible relevance to what we might delicately call the ethnography of the Supreme Court, were more than fair, given that the kind of abuses of official discretion, and the resulting specifically economic damage to its victims she highlighted, actually happened in the case itself, as opposed to being some sort of hypothetical slippery slope.
I’m aware that the galaxy brain explanation for this kind of thing is that perhaps Justice Budweiser’s vote can be peeled off in some future case, and that apologizing for criticizing him for his horrendous concurrence to the shadow docket atrocity that is Vasquez Perdomo is just a price that has to be paid to try to stanch the flow of judicially-approved fascism. And maybe that’s true. But maybe this is just as much or more about how Sotomayor, despite being the only SCOTUS justice in a very long time who actually grew up working class, and thus is particularly well positioned to critique the normally invisible class elements of something like Kavanaugh stops, is giving in to the same intense social-institutional pressures that turn so many outsiders into insiders.
As to the first Latina justice in the history of the court apologizing for making completely fair observations about the ethnic targeting of Latino persons by law enforcement, that requires no further comment.
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