As we announced here, yesterday United States Supreme Court Justice Sotomayor spoke to a packed crowd at the Hawaii Supreme Court Courtroom.
Justice Sotomayor delivered what seemed to be a candid discussion (despite the fact that all the questions were pre-planned) that should have been inspirational to even the most cynical in the room. What follows is a recap of the questions and answers:
1. How do you balance all your commitments as a Justice?
Justice Sotomayor described how her friends were worried when she first became a SCOTUS justice because she’d always said “yes” when asked to do something. On her first day at the court, there were three large garbage bins outside her small transitional office. When she asked what was in them, she was told letters to her. And that there were five more bins. She spent the next year and a half answering the letters. She estimated a 50/50 division in the letters between congratulations and invitations – she realized she could no longer say yes to everyone.
In order to manage her commitments she agrees to invitations based on her plan to maximize the time she does have available to make the biggest difference. Justice Sotomayor has chose two key areas in which to focus: health and education. She balances the acceptances with what she calls the “personal agenda” while realizing there is not enough time to do everything.
After figuring out an approach, the second key to time management is figuring out what people are important and making sure she still goes to events that are important to them. In this case, Justice Sotomayor is talking about friends and family. She continues to cherish the relationships for those whom she cares deeply.
As an aside, when she does eventually find that she doesn’t need to work 7 days per week, Justice Sotomayor enjoys theatre (dance, Swan Lake is her favorite), eating out, cooking, poker night with her girlfriends, reading, bike riding, and baseball.
2. How important is volunteer and pro bono work to get to the bench?
Justice Sotomayor responded that she is often asked how to get to the bench. Her answer is that an attorney needs to find a practice area they love, become really good at it, become reliable enough and interested enough that others admire you for it, and give to others in a way that other people will notice you.
She related advice once given to her that even if you do not consider yourself a politician, you are in the political process. Therefore, you have to perform in a way that either the politicians notice you or the people behind the politicians notice you. To do this you must be good at what you do and give back to others.
The giving part doesn’t change as a judge and she stays involved in the community (i.e. her plan to use her time toward health and education when she accepts invitations).
3. How can the Hawaii Bar Association do more for access to justice?
Justice Sotomayor believes that every lawyer should do pro bono work – meaning giving your personal effort for the needs of someone else. And by pro bono she means free – doing work and not getting paid for it.
Access to justice also means bringing along those who care about the needs of others. For example, teaching young students how to be lawyers or even much more simple tasks. Knowledge is not intuitive and lawyers can teach basic skills like how to balance a checkbook.
Giving back to the community means helping avoid the problems rather than coming in at the back end after the problem has occurred. Attorneys should give back to inspire others to stay out of trouble.
4. What are the most significant differences between being on a court of appeals and being on the Supreme Court?
According to Justice Sotomayor, the most significant difference is that the Supreme Court is perpetually en banc. It is easier to decide cases among a three judge panel and much harder when all nine have strong personalities. Decision making in a small group is easier, and grown exponentially harder as the size increases.
Another difference is that that Supreme Court is less actively involved in the other justices’ written work. On the court of appeals, the judges would often comment on each other’s opinions and even give suggested revisions language. On the Supreme Court, a majority writer is entitled to have his or her way of expressing the court’s opinion and is given deference to do so. Rather than suggesting language, a Supreme Court justice will instead tell the majority writer what is bothering him or her and tell the majority write that if he or she can express it, then they’d join the opinion.
The larger group helps with the decision making, but is less collaborative in the end result.
Another difference is that court of appeals panels often change. During her tenure on the court of appeals, she rarely sat with the same panel. Each case presented a new experience, with new fellow judges and their interests and views. On the Supreme Court, it is always the same nine people on every case so the justices get to know each other well – what is important to each other, what concerns each other.
The justices know well how to push each other’s buttons, both positively and negatively.
The justices’ passions are reflected in their written decisions.
Another difference is that the court of appeals is more directly guided by precedent. Most cases involved settled precedent and the work is satisfying because the judges are resolving issues – solving problems. Only a small number of cases involve new questions.
At the Supreme Court every case involves a situation where there is no clear answer. The court is advancing the law into the unknown – what the law should be. It is much harder than at the court of appeals.
This is why the justices ask questions at oral argument that are hypotheticals. They want to know what their decision is going to mean for the next case – with different facts – and whether it makes legal senses.
As a sidebar, when a judge asks to a hypothetical, the worst answer you an give is “That’s not my facts . . .”
5. What is the role of stare decisis in the Supreme Court these days?
“I don’t know” what Justice Sotomayor’s initial answer, but she said it wasn’t because she was trying to evade the question. She is struggling with the question too. She iterated the difficulty in being given a legal problem and looking at precedent and thinking the precedent is wrong.
As lower courts start applying a decision, you can see the limits or that the rule is not working.
The extreme answer is to reject the old decision. For example, as the court did in Brown v. Board of Education.
In the interim, the court needs to figure out in trying to fix a rule whether they can keep it, adjust it, tinker with it, or make it sound by narrowing or broadening it.
The court does respect prior decisions, but is often trying to grapple with limits. Rules are not black and white because our world is not black and white. The law must address new situations and adjust in a way that makes sense.
As a sidebar, Justice Sotomayor noted that she (and all of us in the room) was a child of Brown v. Board of Education and that she has often commented on the impact that decision had on her life.
6. What are some lessons from your life’s journey?
Justice Sotomayor noted that she is writing a book of her life up to becoming a judge and that the central message of life she has to offer is how willing others are to help.
Those in our lives are teaching us: parents, teachers, friends, colleagues, and adversaries.
Mahalo to SCOTUS Justice Sotomayor for coming to Hawaii and speaking to us – you have lived an incredible life and we are inspired.