Anyone who follows the Court closely will recognize that it has gone a bit topsy-turvy since Justice Scalia’s death – human sacrifice, dogs and cats living together, mass hysteria. More specifically, the Court has produced several split decisions and a few other epic punts. No one harbors the illusion that this is a “normal” term.
But perhaps the foremost sign that things are squirrely at the Court – and indeed, that the apocalypse is nigh and we are all residing in the juridical Thunderdome – is Justice Sotomayor’s emerging alliances in certain cases with the Court’s conservatives. In four decisions since Scalia’s death, she has joined either Chief Justice Roberts or Justice Thomas in two-or-three-justice concurrences or dissents that are deeply uncharacteristic. These cases are Bank Markazi v. Peterson (joining CJ Roberts’s dissent), Ocasio v. United States (dissenting, joined by CJ Roberts), Merrill Lynch, Pierce, Fenner, & Smith Inc. v. Manning (joining J Thomas’s concurrence), and Luna Torres v. Lynch (dissenting, joined by JJ Thomas/Breyer). To put it in perspective: last term, Justice Sotomayor disagreed with Chief Justice Roberts in fifty-two percent of non-unanimous cases. Roberts disagreed with only Kagan at a higher rate. And Sotomayor disagreed with Justice Thomas in eighty-four percent of non-unanimous cases (the highest disagreement ratio between any two justices).
If you had asked me before this stretch what kind of cases would produce these strange alliances, I’m not sure I could have come up with a coherent answer – but my answer would not have looked like these. They are some of the oddest cases to produce these lineups I can think of. Let’s take them in order.
Bank Markazi is a separation of powers case. A group of citizens sued Bank Markazi, an Iranian bank, seeking to recover funds they were entitled as a result of Iranian terrorism. Up against several good legal defenses, the plaintiffs petitioned Congress to pass laws barring the operation of those defenses, and Congress did so. The Court blessed Congress’s action, but Chief Justice Roberts (joined by J Sotomayor) dissented. He traced the origin of the separation of powers, the history of legislative interference with the judiciary in the Founding era, and extensively cited the founding documents. After this highly originalist overview, the Chief concluded that Congress had interfered in the federal courts’ Article III authority.
Ocasio was a more rote criminal case, dealing with the statutory interpretation of federal extortion law. Justice Alito, writing for the majority, held that a group of conspirators violated the statute by transferring money among themselves. Justice Sotomayor (joined by CJ Roberts) dissented, arguing that conspirators who transfer money among themselves cannot violate a law requiring extortion of property “from another.” Such a reading, the dissent held, is “not a natural or logical way to interpret the phrase ‘from another.’” Sotomayor’s dissent examined the history and purpose of the conspiracy statute (and quite effectively rebukes the majority opinion).
Merrill Lynch is perhaps the weirdest of the four. Justice Sotomayor joined Justice Thomas’s concurrence to a Kagan opinion on federal jurisdiction. Kagan, for the Court, concluded that the jurisdictional provision of the Securities and Exchange Act should be analyzed using the same precedents and pathways that courts use to examine normal federal question jurisdiction under 28 U.S.C. § 1331. Justice Thomas concurred but offered a different test – whether the complaint “alleges a claim that necessarily depends on a breach of a requirement created by the [Act].” This is so, Thomas wrote, because the statute’s language that federal jurisdiction applies when a suit is “brought to enforce” rights under the statute is clear-cut. Thomas refused to add the gloss that the Court added (essentially asking whether the federal component is “real and substantial”) because the text did not support it. Justice Sotomayor was the only one who joined the concurrence.
Finally, Justice Sotomayor dissented from Justice Kagan’s immigration opinion in Luna Torres. This is another barnburner – for starters, Justice Kagan consistently refers to those in the country who are not citizens as “aliens,” while Sotomayor pointedly refers to them as “noncitizens.” Luna Torres asked whether a noncitizen who violated a state arson statute – which was identical to a federal arson statute in every way except that it lacked a federal jurisdictional element – had violated a law “described in” the federal arson statute. The Court said yes; Justices Sotomayor/Thomas/Breyer said no. Sotomayor resorted to highly textual analysis, incorporating the dictionary definition of “described in” into her argument and ultimately arguing that because the statutes were not identical, the state statute was not “described in” the federal one.
The only common element to these decisions seems to be what non-academics would call “the BS test.” In all of them, the Court’s decision seemed to require a certain suspension of basic linguistic principles or common sense, and Justice Sotomayor was simply unwilling to go along with those suspensions. She was unwilling to pretend Congress’s action didn’t erode the Court’s power in Bank Markazi, unwilling to suspend a basic linguistic understanding of “extorting property ‘from another’” in Ocasio, unwilling to augment the plain language of the Securities and Exchange Act in Merrill Lynch, and unwilling to abandon a layman’s definition of “described in” in Luna Torres.
But that still doesn’t explain why she’s now forging these alliances. It could be that Justice Scalia was such a caustic messenger for the principles embodied in these opinions – textualism and originalism – that only once he left has Justice Sotomayor been more willing to join these alliances. It would not be the first time that Scalia alienated a potential ally. Jeffrey Toobin, in The Nine, detailed how Scalia’s acerbic style put off Justice O’Connor, losing her vote on decisions where he potentially might have otherwise procured it. Or, as Chief Justice Rehnquist put it, “Nino, you’re pissing off Sandra again. Stop it!” Toobin, at 151. Scalia may have simply put such an unpleasant face on originalism and textualism in internal Court negotiations that Sotomayor did not attempt to forge alliances or seek across-the-ideological-split agreement on those grounds.
It also bears note that Sotomayor split twice from Kagan less than two months after Kagan shishkebabbed Sotomayor in Lockhart v. United States. It was a relatively minor case, turning on a grammatical quirk in statutory interpretation, but Kagan’s dissent essentially went Man-on-Fire on Sotomayor’s reasoning, and was so brutal that it was likely embarrassing for Sotomayor. I don’t think that the two are permanently on the outs, but end-of-term bruised egos may also be creating opportunities for realignment.
Probably most crucially, it’s simply a new Court without Scalia. Mitch McConnell has made clear that until a majority of Americans vote for the same candidate he does, the Court will be operating at a number less than 9. All justices have been adjusting to this new reality – Justice Thomas, for instance, took up the mantle of Second Amendment defense in oral argument at one of the first sittings after Scalia’s passing. Voisine v. United States, Tr. of Oral Arg. at 35. In this new and uncertain environment, everyone is still trying to count to 5. Justice Sotomayor seems to have realized that she cannot accomplish her jurisprudential goals if the votes of CJ Roberts and JJ Alito and Thomas are off the table from the start of every negotiation. She is taking perhaps the boldest steps to forge alliances in a post-Scalia world.