In her first major talk on issues of free speech and privacy, Supreme Court Justice Sonia Sotomayor said recently that her experiences as a nominee and as a justice have led her to censor herself and to question whether camera coverage of the court should be allowed.
"Yes, my notion of freedom has changed since I became a justice of the Supreme Court" Sotomayor said in a New York City speech on May 5 that got little press attention at the time. "There for the first time in a court of final resort, I have come to appreciate in an unanticipated way the great burden that my work imposes."
That burden, as Sotomayor explained it, includes self-censorship and barring media coverage in some situations to promote the court’s image as a neutral and apolitical institution. "The veil of privacy that shelters us from political influence and protects the public perception of the court is necessary because history shows that our authority is not unassailable." She added, "Maintaining the court’s decorum and its respect in the public eye are not minor questions of image and public relations but essential to the proper functioning of the institution and our democracy."
In her speech delivered at Cooper Union before the PEN America Center, Sotomayor said she has tempered her own tendency toward transparency because of this responsibility. "When I give a speech or express myself publicly outside of court opinions, I voluntarily and scrupulously censor myself," she said. "I am cautious to avoid any topic that might foreseeably come before the court or to express myself in any way that would telegraph a future decision, because it’s clear that such expression can and does undermine the public’s confidence in the court."
Sotomayor criticized news coverage of Supreme Court oral arguments, which she said "becomes the occasion for dramatic prognostication in the press as pundits examine the entrails of every utterance for some hint of how we will decide."
That kind of coverage, she said, places too much emphasis on "who might have been having a bad day at the podium," missing other parts of the deliberative process — including the impact that lawyers’ answers to justices’ questions sometimes have on the outcome of a case. "A sportscaster’s reckless account does not guide a ball through the air and neither does the flood of commentary that follows oral arguments sway our decision."
Sotomayor continued, "The tendency instead to read newsworthy drama into every word of oral arguments distorts the public’s understanding of our work, and it’s what leaves even those of us who value transparency over tradition to think carefully about welcoming cameras into the courtroom."
Sotomayor gave the annual "Freedom to Write" lecture to the PEN Center, which defends freedom of expression for authors in the United States and abroad. The talk received little attention when it was delivered, but was preserved on YouTube. Last week Sotomayor declined to release the text of her speech.
Before she joined the court in 2009, Sotomayor voiced support for allowing cameras into the Supreme Court, in spite of the court’s longstanding opposition. But last year, she indicated she had changed her mind because she thought the public would misunderstand the court’s decision-making process based on video from oral arguments.
Sotomayor’s New York speech appears to be the first time she has linked her new views on cameras to a critique of how the press covers oral argument. In some press reports about oral argument, Sotomayor has been criticized for an overbearing style of questioning that annoys lawyers and other justices – though that style also wins praise for ferreting out important nuances and information about a case.
The context for her statements about cameras and self-censorship was a question that the sponsors of the speech had suggested as a topic for her to cover: whether her understanding of freedom of expression has changed since joining the court.
It has, she said, partly because she understands more acutely that her words will be scrutinized more than ever before. In that regard, Sotomayor made a clear reference to the controversy that broke out during her confirmation over her 2001 statement that a "wise Latina woman" would more often than not reach a better decision than a white male without her life experiences. To the New York audience, Sotomayor said, "I have learned from hard experience to avoid a provocative turn of phrase or a rhetorical flourish that might easily be lifted out of context and become a sound bite that refuses to fade away." With a smile, she added, "All of you know what I’m talking about, right?"
Sotomayor said these concerns have led her, from time to time, not to invite the press to some events at which she has spoken since joining the court. Recently, the press was kept away when she and actress Rita Moreno had a conversation before 800 people in D.C. in March. "To ensure Rita and I and the audience that we felt we were in an intimate conversation, the press was not invited," Sotomayor said.
As it turned out, the event got extensive, if second-hand, coverage, because audience members recounted the conversation on social media. And Sotomayor acknowledged in her New York talk that "it seems pointless today to exclude the press from any event when any member of the audience can tweet quotations." But, she said, "the exclusion of the press can often be solely an attempt to establish certain parameters of tone and context." She added that "the presence of press, especially televised press, can change the dynamic, raising the stakes and erasing the subtleties of tone and I might find myself censoring more heavily and dampening the mood whether consciously or unconsciously."
Sotomayor acknowledged that to some audience members, it may have seemed paradoxical for her be talking about self-censorship and avoiding the media when her recently published bestselling memoir, My Beloved World, is remarkably candid and she has been promoting it heavily in the media and in public appearances.
"My reason for writing an exceptionally candid memoir," Sotomayor said, was that "at this moment in the arc of our nation’s history, and where my only task as an individual happens to intersect with that, I am offering myself as a role model, and that can be the most valuable service I can perform, no less valuable than my jurisprudence." She added, "The honesty and openness that the task required would make me vulnerable to personal criticisms, I knew. But it seemed a price worth paying if my story was to serve a meaningful purpose then people would have to identify with it. Vulnerability cuts both ways. If you want to reach and connect with other people, you need to open yourself to connection."
Tony Mauro can be contacted at email@example.com.