A CONVERSATION WITH JUSTICE SONIA SOTOMAYOR.

• Author: Ayers, Andrew B.
• Position: Supreme Court Justice - Interview

ALBANY LAW SCHOOL Dean Alexander Moot Courtroom Monday, April 3, 2017

The following is a transcript of Justice Sonia Sotomayor's conversation on April 3, 2017, with Albany Law students, as well as Alicia Ouellette, the President and Dean of Albany Law School, and Andy Ayers, Visiting Assistant Professor and Director of the Government Law Center, who clerked for Justice Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Prof. Ayers: Here we go. My name is Andy Ayers. I'm the director of the Government Law Center and a visiting assistant professor here at Albany Law School. I'll be co-moderating tonight's discussion.

As you know, every year Albany Law School honors Kate Stoneman, who was the first woman to be admitted to the New York Bar--due in large part due to a campaign that she orchestrated to make that possible--and who graduated as our first woman graduate in 1898, one hundred and nineteen years ago. Every year we give an award to someone for bringing about change and opportunities for women in the legal profession. Nobody could possibly deserve it more than our guest this evening.

Born in the Bronx in 1954, she graduated summa cum laude from Princeton University. [Applause.] She went to Yale Law School, where she was an editor of the Yale Law Journal. Yeah, I see one hand pumping in the air. She was an assistant district attorney in Manhattan and in private practice for a few years. [Cheer.] All right, we've got one of those, too. And she was nominated to the United States District Court for the Southern District of New York by the first President Bush, to the Second Circuit Court of Appeals by President Bill Clinton, and to the Supreme Court of the United States by President Barack Obama in 2009.

She'll be joined tonight on the panel by our President and Dean, Alicia Ouellette. Please join me in welcoming Justice Sonia Sotomayor.

[Applause. Justice Sotomayor enters with Dean Ouellette and poses for a picture with the panelists.]

Justice Sotomayor: You know, Andy, you get into this position and you learn how to give up not liking yourself in pictures. [Laughter.] Many of you may know I was once married, and at my wedding back then, you paid for the pictures you got, a hundred of them, and it was a package fee. At picture number 68, I told the photographer, go away. [Laughter.] I have stopped doing that now.

Dean Ouellette: Well, Justice, we are so, so happy to have you here. It is really an honor of a lifetime for every member of the Albany Law School community to welcome you here. And we are especially glad to have you here as we celebrate Kate Stoneman Day, which is a day on which we honor women who make a difference, who take chances, are bold, and change the world for the people who come after them, particularly for women and people of color. And adding you to that legacy makes us a better place forever, and we're just so grateful to have you here.

We have a tradition on Kate Stoneman Day of having a keynote address. Our keynote address this year will be a little nontraditional. We're going to have a conversation. And Andy and I will start out by asking you a couple of questions, and then we've got some students who are eagerly awaiting the opportunity to ask you some question as well.

"I Hope My Opinions Will Become More Engaging, More Readable, More Everything." Dean Ouellette: So I'd like to start by asking a question about personal style in both your public appearances and your book, and your judicial opinions. In your public appearances and throughout your book--which I loved, and I hope you all buy and read, it's really wonderful--you share your vulnerabilities, you talk about struggles, you talk about your imposter syndrome at times, and you share your big personality. In your judicial opinions, you are incredibly professional, brilliant, of course, but there aren't the rhetorical flourishes in the same way that we see in your book and when you talk in public. And we start to see a little bit of that when you write dissents, a little bit of your personal style in the recent dissents. But I'm wondering what your thoughts are on the tension between your public persona as a vulnerable, strong, but very human justice, and your personal style in your judicial opinions, and if you are starting to develop more of a personal style in your judicial dissents.

Justice Sotomayor: Well, Dean, when my book came out, Nina Totenberg, who is a commentator, famed commentator for NPR, read the book, and she interviewed me. And one of her initial observations was that my book read like fiction. [Laughter.] And then she said, why not write opinions like that? And I looked at her, and I said, because it is not fiction. [Laughter.] It is a simple answer. But opinions are real life. And opinions are about making pronouncements that deeply affect people. And, to the extent that that is what an opinion is doing, I feel an obligation, especially when I am writing for The Court, because it is a capital "T" and a capital "C," to ensure that our voice is not the voice of fiction and not the voice of emotion but the voice of explanation, of explaining how we reached our conclusion and what in the law compelled the answer we gave.

And to that extent--and I mentioned this to some of the students I spoke earlier to--I work very hard at making my opinions understandable to anyone who bothers reading them. [Smiling.] I am laughing only because in this room there are mostly lawyers. How many lawyers in this room have actually read a Supreme Court decision from cover to cover when it came out? Not half the audience. [Laughter.] Most people do not read our decisions. Most people form their opinions from popular press, from reports of what we say. But I want to ensure that anybody who picks up one of mine, if you took the legal cites out, you would not need more than a fifth-grade education to follow what I am saying. And I hope with most of my opinions that I have taken you through the logic of how I reach my conclusion. By the time you get to the last page, I hope you can say, now I know why I should rule this way, and why you should rule the way I want you to. [Laughter.]

Now, it does not obviously mean the same thing when you are a dissenter, because you are not speaking for the Court, you are speaking for yourself and what you believe the Court has gotten wrong in its analysis. And there you can have a more personalized voice, but even with that personalized voice, you have to be careful, because if you want other people to join you, you cannot go so far to the extreme that the verbiage of your opinions will turn people off from joining you. I have had more colorful writings by more colorful colleagues, and you will notice in many of those instances that people will forbear from joining their dissents, or might write separate concurrences if they are in the majority, because they do not like the expression of how that person is saying things.

And so you are always sort of walking that fine line as a justice. If most of you will see almost any dissent that I author, there is probably two-thirds of it--this is my formula--where it is pure legal analysis. I show why the majority got it wrong. Only the last third tells people why it is important, meaning what the consequence is of the wrong decision. And I do that because I do believe that laws affect people, and one has to acknowledge that when you are writing and telling people they have lost. You have to make them understand that they were heard, so even if they are losing, that they feel that their statement had some value.

But I do believe that it is a different vehicle than a book, and to the extent that any justice grows--and every justice should grow and does grow--I often tell the story of my first year with Justice Stevens. I called him up one day after reading one of his opinions and said to him, John, I am in awe of you. This is just a brilliant opinion, and I am a little frightened that I could never do something like this. And he paused and he said, "Sonia, no one is ever born a justice. You are born a person. You grow into becoming a justice. You have all the tools necessary to make your own mark." I was eternally grateful to him for that that first year, because I spend a lot of time trying to improve my work as a justice, and I realized that that is a natural progression in growing, which is why I hope my opinions will become more engaging, more readable, more everything, as I am a justice for longer.

Dean Ouellette: Thank you.

Who Is The Government Lawyer's Client? "You Are A Lawyer For All Of Them." Prof. Ayers: So my question picks up on one of the first conversations we ever had. It was about the very first piece of writing that I gave you. I had drafted something, and you said, "Take it back and do it again." [Laughter.] "This isn't right because you haven't been fair to the losing side." You said, "This does a good job of articulating the argument that's going to win, but it doesn't do a good job of articulating the argument that loses." You said, "I want you to think about judges as public servants, whose clients are the public, including the losing side." And I took that with me when I became a government lawyer and now that I teach professional responsibility, because I think that for a lot of people who go into government--and a lot of Albany Law students do go into government--figuring out who the client is can turn out to be an amazingly complicated question.

If you're a prosecutor, at least you have a specific ethical rule that tells you you're supposed to do justice, so you can start from there. But for somebody who's a government litigator representing an agency--is it the public, is it the agency, is it the people at the agency who think they're the client? So these different candidates for being the client all have a claim on you and your loyalty. I'm wondering if you have any advice about this. You...