Sotomayor and Barrett, Lately at Odds, discuss Supreme Court relations

A week after Judge Amy Coney Barrett chastised Judge Sonia Sotomayor for choosing to “heighten the disagreement” in a Supreme Court decision on former President Donald J. Trump’s fitness for office, the two women appeared together Tuesday to talk about civics and civility.

For the most part, they provided a familiar account of a collegiate court whose members know how to disagree without being disagreeable.

“We don’t speak in a heated manner at our conferences,” Judge Barrett said, referring to the private meetings where the justices discuss cases. “We do not raise our voices, no matter how current the issue is.”

Justice Sotomayor, who usually offers a sunny description of the justices’ relations, filed a partial dissent.

“Every now and then someone comes close to something that could be considered offensive,” Judge Sotomayor said. When that happens, she says, a senior colleague will sometimes call the offending judge and propose an apology or some other way to resolve matters.

Similar interactions can happen if a draft recommendation is too harsh, she said. “Around that there is a dialogue, an attempt to find another expression,” she said.

Judge Sotomayor added: “So all of these things are ways of managing emotions without losing respect for each other and without losing the understanding that each of us is acting in good faith.”

Judge Barrett picked up on this point, which may have resonated even more strongly in the wake of her concurring opinion in last week’s case. It questioned the tone of the joint opinion by Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson, who said they had unnecessarily raised the national temperature.

“I’m glad Judge Sotomayor made the point that sometimes we have to apologize because we’re human,” Judge Barrett said. “And so sometimes you say something that might come across in a way that you didn’t mean.”

The judges have standards to ensure collegiality, she added. They speak at their conferences in order of seniority, no interruptions are allowed, and no one speaks twice until everyone has spoken once.

The judges often have lunch together, in assigned seats. Coincidentally, Judge Barrett said, she sits across from Judge Sotomayor. The norms for discussion at conferences, she added, mean that “you don’t feel guilty looking at someone across the lunch table.”

Eric Liuthe general manager of Citizen Universitywho interviewed the two judges, said the court’s standards sounded like “the rules of a really good kindergarten.”

Another analogy, Judge Barrett later said, was that the judges were part of an arranged marriage with no possibility of divorce.

Judge Sotomayor emphasized that it is crucial to maintain good relationships. “I may not have Amy in this case,” she said of a hypothetical case, “but I’ll definitely need her for something else tomorrow.”

Judge Barrett said shelter is sometimes possible.

“Our job is to say as best we can what we think is the right answer,” she said. “So neither of us can compromise on that front and on the end result, but there’s a lot we can compromise in the way we write opinions. You know, you have the ability to write an opinion broader or narrower.”

She added: “We all work very, very hard, down to the little word choices, often down to the smallest word choices, to accommodate each other.”

Judge Sotomayor, 69, was appointed by President Barack Obama in 2009. Judge Barrett, 52, was appointed by President Donald J. Trump in 2020.

The conversation took place at a forum on citizenship education at George Washington University. Civic education was a pet project of Judge Sandra Day O’Connor, who died last year.

Judge Barrett recalled something Judge O’Connor had said: “If you want to know what’s going on in America, you can look at our role and see that some of the battles waged through litigation often reflect of the battles being fought in America. that are conducted in society as a whole.”

Judge Barrett said the court strikes the right balance between openness and secrecy. “We are at the same time the most transparent industry,” she said, adding that “you know exactly why we have come to the decisions we have made, because we make that transparent.”

“But then we also keep a lot confidential, and I think that gives us the space to be able to deliberate and talk,” she said.

It is true that the court usually makes lengthy decisions in contested cases. But it often makes emergency calls for no reason in what critics call its shadow role.