New Series, Vol. 2, No. 16
Historically, US Supreme Court justices “off-bench” speech (their communications other than in judicial opinions) typically was limited in quantity, even while its content ranged from educational (justices teaching law school courses or seminars) to the personal (interviews, memoirs, etc.). Justices typically framed the Court as above and separate from politics, business, and more, including the general public, as arguably unique. Such antidemocratic context and content from the justices had the primary goal of defending the Supreme Court as an institution. For example, the late conservative Justice Antonin Scalia addressed the public to “bolster his authority, extol the certainty of his judgment, and to supplant public deliberations” (Asenas & Johnson, 2017).
In recent years, however, the liberal Justice Sonia Sotomayor has taken opportunities to not only criticize various decisions on which she dissented and the legal reasoning behind them, but to appeal to members of the general public who agree with her to fight against Supreme Court decisions with which they disagree any way that they can. Researcher Katie L. Gibson ascribes to Sotomayor the approach known as demosprudence, defined as a legal philosophy centering democratic participation and urging typical citizens to assert agency in shaping the meaning of law. (Her article, however, does not address legal responses to right-wing U.S. Supreme Court decisions, such as state laws [whether implemented by normal legislation, or by initiative or referendum] and state court opinions that can give citizens more rights than the U.S. Supreme Court does.) Gibson concludes that Sotomayor “challenged an entrenched tradition of off-the-bench judicial rhetoric by confronting the anti-democratic myth of judicial supremacy and [is] clearing inroads for the public to claim more agency in their Constitutional democracy.”
Gibson starts with particularly provocative dissenting opinions that justices such as Scalia, Sotomayor, and sometimes others have written in usually highly controversial decisions, such as “gutting the Voting Rights Act, undermining the Establishment Clause, narrowing environmental protections, overturning Roe v. Wade, and rolling back other civil rights protections.” Justice Sotomayor has gone on, in numerous and varying public fora, to “frame the crisis at the Court as a democratic exigency” and call for collective action in democratic resistance, in a speaking style broadly accessible to the general public.
Justice Sotomayor addresses public confidence in the Supreme Court crashing to an all-time low, and contrary to traditional narratives by justices such as Samuel Alito that Court decisions are extremely careful and unassailable, she “instead describes a long history of error, failure, and wrongdoing” on cases such Dred Scott v. Sanford, Plessy v. Ferguson, and others. Justice Sotomayor also rejects the idea of any Justice, such as the late Ruth Bader Ginsburg, being treated as a “heroic savior.” In fact, she tries to connect the Court to average citizens by “using colloquial language, a commitment to sharing personal anecdotes and centering outsider lived experiences, and performative dynamics of connection.” For example, Justice Sotomayor routinely speaks about growing up poor, and as a person of color, in the Bronx, New York, and how her mother attended school in her 50s to become a community nurse for their neighbors. In talking about her background, she has said, for example, “There were no lawyers, there were no judges, our only contact with law enforcement was not a positive one, it was somebody we knew getting arrested.” Justice Sotomayor also talks about her own experiences with sexism and racism.
Finally, Justice Sotomayor’s speaking style has included mingling with audiences, answering a lot of audience questions, and using “long pauses, vocal sighs, and changes of tone to communicate shared understanding,” and even confessing that she has asked herself about whether her efforts are “worth it” and sometimes crying before recommitting to fight. A story that she tells to provide hope is about the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire: after the Court upheld a 180-day statute of limitations for filing discriminatory pay complaints under U.S. Title VI, Congress in 2009 changed the filing period to start with the latest paycheck rather than the first one. Sotomayor also reminds audiences that Americans’ rights today were fought for and developed over hundreds of years with clear, long-term progress. In short, Sotomayor tries to convince average Americans that they do not have to be mere spectators of the U.S. Supreme Court, whose decisions affect millions of Americans, if not all Americans, usually for decades or even centuries.
Communication Currents Discussion Questions
- For centuries, the “fourth branch of government” (“Fourth Estate”) always meant journalists and news media. However, Justice Sotomayor (and researcher Katie L. Gibson) defines the fourth branch of government as the general public only because the public votes. The news media, in fact, are mentioned only once in this article, and Gibson does not note Sotomayor’s unusual substitution of the public for news media. Consider reasons for, and implications of, this change.
- Justice Sotomayor laments that few people read entire Supreme Court opinions and urges more Americans to read them. But in speaking to the public, she feels compelled to provide definitions of basic legal terms and admits that she “didn’t understand” much during her first year of law school. What does that suggest about the desirability, or need, for basic legal education in K-12 schools?
- Justice Sotomayor hears from citizens who feel disappointed and even hopeless about the U.S. Supreme Court. She tells such citizens to keep fighting for what they believe in. Is that what you would say and why or why not? If you would give those citizens other advice, what would it be and why?
For additional suggestions about how to use this and other Communication Currents in the classroom, see: https://www.natcom.org/publications/communication-currents/integrating-communication-currents-classroom
ABOUT THE AUTHORS
Translated by Dr. Dane S. Claussen from K. L. Gibson (2025). A plea for democratic resistance: Justice Sonia Sotomayor’s demosprudence through public address. Communication and Democracy 59(1), 116–134. https://doi.org/10.1080/27671127.2024.2431808
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