When Justice Sonia Sotomayor addressed attendees at a University of Kansas School of Law event Tuesday, she was not sitting under a large palm tree. But she may well have been, because her words were delivered with ample shade — and it was directed at one of her fellow justices.
“I had a colleague in that case who wrote, you know, these are only temporary stops,” Sotomayor said, according to Bloomberg Law reporter Jordan Fischer. “This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”
The case she was referring to was the short, unsigned shadow docket ruling last September in Noem v. Perdomo, which essentially allowed immigration agents to detain people to ascertain their immigration status based on their race, language, location, and type of job. The colleague in question is Justice Brett Kavanaugh.
Kavanaugh wrote a concurrence to that order justifying such profiling, leading to the phrase “Kavanaugh stops” being coined.
“Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States,” Kavanaugh wrote.
This is not the first time Sotomayor has criticized Kavanaugh for his position in the case. In her dissent in Perdomo, Sotomayor was equally as blunt.
“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,” Sotomayor wrote, joined in dissent by Justices Elena Kagan and Ketanji Brown Jackson. “Rather than stand idly by while our constitutional freedoms are lost, I dissent.” It was one of many occasions where Sotomayor skipped the traditional use of the word “respectfully.”
But her comments Tuesday about Kavanaugh’s background were unusually candid for a justice speaking about a fellow jurist on the bench.
Sotomayor criticized the fact that the fate of those who are detained in Kavanaugh stops was not even considered in the ruling, even in cases where the person is later released.
“Those hours that they took you away, nobody’s paying that person,” Sotomayor said Tuesday. “And that makes a difference between a meal for him and his kids that night and maybe just cold supper.”
When asked if being the first Latina justice factored into her view on the case, which is seen as opening the door to the harassment of Latinos by immigration officials, Sotomayor said her dissent was written “not as a Latina who’s insulted.”
“I was not talking as a Latino justice,” she said. “I was talking about a justice who respects precedent. And I was explaining why that precedent is being violated.”
It’s not the first time that Sotomayor has referred to her heritage as part of her job. The 71-year-old Bronx native and self-proclaimed Nuyorican has frequently spoken and written about her ascent from a child growing up in a New York tenement to being named to the highest court in the United States.
In fact, a 2001 statement she made about her heritage became fodder for GOP opponents during her 2009 Senate confirmation hearings. In that statement, made during a symposium at the University of California School of Law at Berkeley, Sotomayor said in part: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
While some decried her comments as disqualifying, supporters noted that courts should have judges who hail from a broad array of backgrounds, since their decisions will impact people of all stripes.
Sotomayor made that point Tuesday when she referenced the different background of Kavanaugh, who was born to parents who were lawyers in Washington and attended the prestigious Georgetown Preparatory School.
“Life experiences teach you to think more broadly and to see things others may not,” Sotomayor said. “And when I have a moment where I can express that on behalf of people who have no other voice, then I’m being given a very rare privilege.”
Update: On April 15, in response to media inquiries, Justice Sonia Sotomayor issued to following statement: “At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”
This is an excerpt from The Gavel, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr. Sign up to get The Gavel in your inbox every Wednesday evening.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.