By Anna Kaminski, Kansas Reflector
LAWRENCE — Justice Sonia Sotomayor said Tuesday the U.S. Supreme Court’s “shadow docket” is controversial among her colleagues, and it can consequentially short-circuit lower courts.
At a Q&A-style fireside chat among three influential Latinas and a crowd of around 1,700, Sotomayor articulated her view on the implications of the court’s frequent use of the emergency docket, also called the “shadow docket,” which allows the court to intervene in cases before they’re ripe for Supreme Court review.
“There’s a lot of controversy over this process,” she said, “because there’s a belief among some on my court — the majority — that whenever we stop the executive branch from doing something it wants to do, that’s irreparable harm to the government.”
She continued: “There are others, like me, who believe that irreparable harm can happen to the people who are being affected.”
Sotomayor answered questions onstage at the University of Kansas Lied Center from two KU alumni, Janet and Mary Murguia. Janet Murguia is a civil rights activist and president of UnidosUS. Mary Murguia is chief judge of the U.S. 9th Circuit Court of Appeals.
The conversation was a celebration of the women’s shared Latina heritage. Sotomayor is of Puerto Rican descent and the Murguia sisters are Kansas City, Kansas, natives who grew up in a Mexican family in the Argentine neighborhood. The women discussed Sotomayor’s trailblazing accomplishments and the teaching moments they each have encountered in life. Sotomayor poked fun at the days of her youth, emphasized the importance of second chances and explained her dissent in a pivotal immigration enforcement case that appeared on the emergency docket last year.
The case, Noem v. Perdomo, asked the Supreme Court whether it should leave in place an order that prevented federal immigration officers in California from stopping people based on race or ethnicity, whether they speak Spanish or accented English, locations supposedly frequented by immigrants, and specific jobs such as construction.
The majority on Sept. 8 overrode the district court, allowing immigration officials to conduct stops. It was a decision Sotomayor called in her dissent “yet another grave misuse of our emergency docket.”
“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. Rather than stand idly by while our constitutional freedoms are lost, I dissent,” she wrote.
Sotomayor said Tuesday she was not writing as a Latina justice. Instead, she said, she was writing as a justice respectful of precedent.
She said, in answering a question about the emergency docket, it is unfair to always place a thumb on the scale for the government.
“In many situations, the government has been operating in a particular way for ages,” she said, “and the people whose lives are being disrupted or destroyed, they’re entitled to have their day in court first.”
The Murguia sisters asked Sotomayor about her reading habits — she said she just finished reading Justice Amy Coney Barrett’s memoir and is in the middle of reading former Justice Anthony Kennedy’s — as well as her background as a Bronx native who went to Princeton and Yale and the pushback she received during her confirmation process. President Barack Obama nominated her for the Supreme Court in 2009.
Earlier in Sotomayor’s visit to Kansas, she read one of her children’s books at a Lawrence elementary school library, and she listened to the stories of participants in an area second chance program for formerly incarcerated individuals.
She finished the roughly hour-long Q&A by describing how her position on the Supreme Court has changed her. She has the opportunity to confront the most important questions facing the world, she said, and she has come to understand the beauty of the United States.
“The beauty of this country is staggering,” she said. “The differences are astonishing. And yet, that we all are proud Americans is really an extraordinary feat by a nation. We have to hold onto that spirit of permitting our differences to exist while being united in building this more perfect union. There’s no other country in the world like us.”
