WASHINGTON ― Along with the Supreme Court’s majority, Justice Sonia Sotomayor delivered a widely celebrated ruling this month that temporarily kept in place an Obama-era program shielding hundreds of thousands of young immigrants from deportation. But in her own short and piercing partially concurring opinion, she went further than any of her colleagues.
Sotomayor declared the court erred by rejecting claims that anti-Mexican and anti-Latino racial hostility was at the root of President Trump’s decision to end the Deferred Action for Childhood Arrivals initiative.
“I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” she wrote, citing Trump’s own statements likening Mexican immigrants to “‘people that have lots of problems,’ ‘the bad ones,’ and ‘criminals, drug dealers, [and] rapists.’”
Trump rode to the White House on an overtly anti-Mexican and anti-Muslim platform. His two picks for the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have made it the most conservative in more than 75 years and a poor venue to challenge systematic racial bias, legal experts said. But Sotomayor, a liberal who is the first and only Hispanic justice, has emerged as a sharp, steady and often lonely critic of administration policies she sees as clearly motivated by racial and ethnic discrimination — and of her colleagues’ willingness to look the other way.
“Sotomayor is a voice of one,” said Kari E. Hong, an associate professor at Boston College Law School. “She has been the only justice to consistently bring in a real world experience of discrimination having experienced that discrimination herself.”
With Congress in a deadlock over immigration and citizenship, administration officials have rewritten and gutted protections for immigrants, making more than 100 changes to federal rules, largely affecting Black, Latino, and Muslim families. When those have been successfully challenged in lower courts, the administration has appealed directly to the Supreme Court, which has shown itself likely to reject or set aside claims of racial animus.
From the bench and in scathing opinions, Sotomayor has emerged as a voice of dissent on those rulings and the administration’s actions. The daughter of Puerto Rican parents, Sotomayor was raised in a housing project in the Bronx before she attended Princeton University, where she often felt so out of place among her wealthier and more privileged classmates that a friend likened her to “Alice in Wonderland.” She was nominated to the court by President Barack Obama.
She has not shied away from speaking about her personal history or from weaving it into her decision making and worldview. She was the first justice to ever use the term “undocumented immigrant” and her conservative colleague, Samuel Alito, once chastised her for using the word “noncitizen” over alien.
In January 2018, when the court upheld an iteration of Trump’s travel ban against people from seven Muslim-majority countries, Sotomayor in her dissent read through a list of Trump’s tweets and remarks against Muslims that she said showed the policy had been “motivated by hostility and animus toward the Muslim faith.”
This year, Sotomayor chided her fellow justices for granting the Trump administration so many emergency powers after the court prevented the state of Illinois from challenging federal officials over its new “public charge” rule, which restricts green cards for immigrants who rely on public benefits for food, housing, and medical care.
She also skewered lawyers defending a Trump administration proposal to add a citizenship question to the 2020 Census, pointing to concerns from Latino advocacy and community groups that feared Latinos would not fill out the form. Documents later disclosed in the case showed architects behind the citizenship question sought to give Republicans a political advantage when drawing new voting districts by excluding Latinos from the census count. But the court did not consider those records as part of its final judgment.
The DACA ruling was a significant blow to Trump, but also a warning to civil rights activists and immigrant advocates. Although the program was kept in place for now, the ruling further narrowed the scope of antidiscrimination law, lawyers and legal experts said, making it more difficult to protect the rights of Black, Latino, and Muslim Americans, just as the nation is in the midst of a reckoning over structural racism in all facets of life.
When Trump ended DACA in 2017, he fulfilled a campaign promise. The initiative, which was created under Obama and has allowed some 800,000 young immigrants to temporarily work and go to school, has wide support among Republican and Democratic voters, including Trump supporters. But congressional Republicans have argued it is unconstitutional and an example of presidential overreach.
In cases consolidated before the Supreme Court, plaintiffs — including DACA recipients and the University of California Board of Regents — said the Trump administration acted wrongfully in rolling back the program because it failed to follow proper federal procedures. Several of the cases further alleged the move violated constitutional equal protection rights, pointing to its disparate impact on Latinos from Mexico, who represent 78 percent of DACA recipients; the irregular history behind the termination; and anti-Mexican and anti-immigrant statements by Trump before and after his election.
Chief Justice John Roberts, writing the 5-4 majority opinion, agreed the administration’s moves were “arbitrary and capricious.” Officials failed to consider the welfare of DACA recipients and their families, the damage to the US economy, and other alternate approaches that could have addressed concerns over the legality of the program, justices said. But Roberts and the other justices took a narrow approach of antidiscrimination laws, calling evidence of Trump’s hostile remarks “unilluminating,” and saying they were “remote in time and made in unrelated contexts.”
In her opinion, Sotomayor countered that her colleagues should have kicked the case back to lower courts, and sought to thread together a pattern of discrimination, linking Trump’s statements and policies against Latinos and Muslims.
“Taken together, the words of the President help to create the strong perception that the rescission decision was contaminated by impermissible discriminatory animus,” Sotomayor wrote.
Proving claims of systematic racial bias was not always so difficult. Under Chief Justice Earl Warren from 1953 to 1969, the court expanded civil rights in dramatic ways, delivering monumental rulings that sought to desegregate public schools, strike down bans on interracial marriage, and provide equal access to justice for criminal defendants.
But Republicans have waited for a Supreme Court this conservative since Richard Nixon campaigned against the Warren court more than 50 years ago, calling for “law and order” justices. And since the late 1970s, the court has raised the threshold for constitutional cases of discrimination, requiring litigants to prove it was intentional and not solely a byproduct of a policy.
The new dynamics of the court hasn’t guaranteed success for Trump, who was so incensed about the DACA ruling, he tweeted: “Do you get the impression that the Supreme Court doesn’t like me?” His administration has since indicated it would again move to end the program and unveiled a list of conservative Supreme Court justices he intends to nominate.
Trump’s explicit reliance on racial stereotypes and grievances has put the court in a tight spot. Only Sotomayor has refused to flinch, lawyers and legal experts said.
“Racism was not spoken in polite company,” Hong said, referring to the justices. “Now that racism is expressed, the polite company doesn’t know how to explain it or talk about it.”
Ahead of the DACA ruling, the court surprised observers by ruling that a landmark civil rights law that protects gay, lesbian, and transgender people from discrimination in employment. But on the same day, with the nation grappling with police brutality and racism, the court turned down eight cases challenging the doctrine of qualified immunity, which often leads to the dismissal of police misconduct cases.
For Latinos in the United States, most of whom are of Mexican and Puerto Rican heritage, moving racial discrimination through the legal system has historically proven harder still, as the demographic has long occupied an “in-between space” in American politics and policy, said Laura Gomez, a law professor at the University of California Los Angeles.
“We tend to think about immigration and Mexican ethnicity contained in this little place,” she said. “And we think about African American racism in this other place, and never the two shall meet.”
With Trump once more campaigning on racist rhetoric and racial grievances, Sotomayor’s DACA opinion is emblematic of the present moment, Gomez said, inviting people to examine how anti-Black, anti-Asian, and anti-Latino racism are “very much intertwined.”
Clarification: The headline on an earlier version of this article stated that Sotomayor dissented on the DACA ruling. She concurred on the decision to keep the program in place, but dissented on the determination that anti-Mexican and anti-Latino racial hostility was not at the root of President Trump’s decision to end the program.