This month, the crowd at the Smithsonian Museum of African American History and Culture was electrified as a speaker called on the lawyers in the audience to “fight this fight” and declared, "We can’t lose the battles we are facing.”
What was particularly thrilling was that the declaration of "act of solidarity" was not coming from a Democratic member of Congress or an MSNBC host, but from Associate Supreme Court Justice Sonia Sotomayor.
There was a day when such a speech would have been scandalous for a sitting justice of the Supreme Court. For much of the court's history, justices avoided public speaking beyond the perfunctory commencement speech or circuit judicial conference. The tradition was that justices would limit comments on major issues to their written opinions, so as to avoid any question of partisanship or bias against litigants. It was considered a cost of being one of nine.
That tradition, however, was shattered in the 20th century by what I once called the “rise of the celebrity justice.” Despite my respect for them, I was critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who seemed to relish appearances before ideologically supportive groups, discussing not only issues that might come before the court, but also making comments in books and speeches on political issues.
The troubling trend has created the impression of justices maintaining constituencies on the left and the right. The adoration and attention can have a corrosive effect on a jurist caught up in the moment. Previously, Sotomayor was criticized when she directly called for political action from young law students to defend abortion rights.
Sotomayor acknowledged, "I am pointing out to that when I shouldn’t because they tell me I shouldn’t." However, she criticized a recent decision of the court from which she had dissented and chastised her conservative colleagues who “have opted to bury their heads in the sand.” She added, "You know, I can’t change Texas’ law but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”
Sotomayor's latest comments came shortly before the hearing in the birthright citizenship case, where the court has been asked to rein in district courts imposing national or universal injunctions against the Trump administration. Sotomayor's sharp questioning of the solicitor general drew a rare rebuke from Chief Justice John Roberts, who asked if the other justices could be allowed to hear the counsel's answers.
The hearing also highlighted the public comments of another justice on the very matter before the Court. In 2022, when President Biden faced a fraction of the injunctions imposed against Trump, Justice Elena Kagan publicly condemned the use of universal injunctions in an interview at Northwestern University School of Law. She lashed out at the obvious "forum shopping" to get before favorable courts and said “It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.” She added, "You look at something like that and you think, that can't be right."
Now, in the Trump administration, Kagan has a case that can right that wrong by requiring parties to certify a national class action if they want a national injunction. However, Kagan raised some eyebrows by quickly stating that "this case is very different" and then suggesting that there was a need for national injunctions against Trump.
As Solicitor General John Sauer tried to distinguish between the procedural question before the Court from the merits (which have not been fully briefed), Kagan and Sotomayor insisted that the unconstitutionality was clear. Kagan snapped "Every court is ruling against you."
Kagan's rationale was as disturbing as her apparent reversal. The merits of the birthright citizenship order are still being briefed in lower courts. Moreover, district courts have reasonably concluded that they are bound by prior Supreme Court decisions. The administration believes that those cases are wrong or wrongly interpreted. Most of us expected the Administration to lose in the lower courts before the issue can be raised with the Supreme Court.
And frankly, it will likely lose on the merits there as well. However, that was not the issue before the justices this week. The issue was whether, as a constitutional matter, district courts can bind an entire nation in resolving a case or must confine relief to the parties before it.
The Trump administration is not arguing that courts can never issue universal injunctions. Rather, it is arguing that one must establish a national class action in order to demand a national injunction from a district court. The process under Rule 23 of the federal rules includes tests for determining whether parties in a given case truly represent the interests of other similarly situated individuals.
Kagan and her liberal colleagues insisted that, even though they were not looking at the merits of the birthright citizenship case, they could take a "peek" at what Trump was trying to do. Kagan suggested that Trump's birthright citizenship order was clearly unconstitutional and thus may warrant a national injunction even if other controversies might not.
Some of us believe that a court's authority to issue injunctions should not change based on justices taking a peek ahead at the ultimate merits in a case. Kagan's comments raised questions of whether an injunction "can't be right" if a greater percentage of courts disagreed on the merits.
Putting aside how the Supreme Court will rule in the case (which is unclear), the controversy leading into the argument over Kagan's earlier comments shows the perils of such public speeches. Kagan raised interesting concerns over ending such injunctions, but those points became enmeshed with her prior public positions. Her effort to distinguish the case led to claims that she was spinning a case to conform with her public commentary.
Sotomayor and Kagan have made many speeches that have uplifting messages for law students and lawyers alike, including some of the comments in these events. They are both worthy role models for all lawyers. However, these public comments are not a model for jurists, in my view. The controversies this week are only the latest examples of the costs to the court itself in justices holding forth on political subjects or issues that may come before them.
During the week of these controversies, another figure, retired Justice David Souter, passed away. One of the things I most respected in Souter was not only his modesty and civility but his reticence in making public comments. He spoke through his opinions and left the rest for others to debate.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School where he teaches a course on the Supreme Court and the Constitution.
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