Justice Sotomayor's message to lawyers: Stand up, fight and win! Marc Elias

[Amaryllis]

https://newsletters.democracydocket.com/judges-footnote-and-warning-to-trumps-big-law-collaborators-1?

Justice Sonia Sotomayor is not one to hide her feelings. A plainspoken New Yorker, she is known as a tough questioner who challenges lawyers who appear before the Supreme Court on their assumptions and the consequences of the legal positions they advocate. In an era when judges are often assessed by their commitment to democracy, she stands as a stalwart in the pro-democracy camp.

Yet, she remains a Justice, and those on the high court often exercise caution in their choice of words. That is why it was striking when she used an audience of lawyers to deliver a stern message to the legal profession: stand up for democracy, take on the hard fights and do whatever you can to win.

“I tell law students if you’re not used to fighting losing battles, don’t become a lawyer. Our job is to stand up for people who can’t do it themselves. Our job is to be the champion of lost causes. But right now, we can’t lose the battles we are facing. We need trained and passionate and committed lawyers to fight this fight. With all the uncertainty that exists at this moment, this is our time to stand up and be heard. For me, being here with you is an act of solidarity.”

Over the last decade, a rift has developed on the left over the best way to advance democracy in court. One side urges restraint, arguing that federal courts — especially the Supreme Court — have become increasingly hostile to civil rights. Led by prominent academics, they caution against bringing cases that could be used to further undermine voting rights and free and fair elections.

On the other side are those who insist on using every legal tool available to protect democracy now. They acknowledge the ideological makeup of the courts but refuse to let it dictate their litigation strategy. They embrace Martin Luther King Jr.’s call for “the fierce urgency of now” and are guided by Hillel’s famous question: "If not now, when?"

I am firmly in this camp and have sometimes been criticized by those who advocate caution and patience. But I am not alone.

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This group includes former Attorney General Eric Holder, whose redistricting litigation efforts have insisted that courts follow the federal Voting Rights Act and U.S. Constitution. It includes Reverend William Barber, who argued a decade ago that morality, decency and the law required challenging a North Carolina law that few believed would be struck down — yet it was, in its entirety.

It also includes the Congressional Black Caucus, which in 2022 made its position clear:

“Be creative. Be relentless. Be unapologetic in your commitment to do whatever it takes to ensure that every American has their vote counted no matter how they look or where they live. No lawsuit is too trivial when it comes to the voting rights of citizens.”

You might think this debate is over — that everyone understands the current circumstances demand urgent, aggressive action to fight Trump’s authoritarianism everywhere, all at once. I wish that were true. It is not.

With each lawsuit, the naysayers continue to counsel against aggressive action. When courts rule against democracy, they say, "I told you so." When pro-democracy litigants win, they warn, "Just wait for the appeal."

We saw this when Democracy Forward and the ACLU sued to stop the illegal deportation of migrants to a Salvadoran gulag. Critics worried that the plaintiffs were unsympathetic and risked making bad law. When the Court ruled 9-0 in favor of the migrants, the naysayers insisted it didn’t matter because the courts couldn’t force Trump to comply.

I recently experienced this firsthand in a case my firm filed against Trump over his executive order to seize control of key aspects of federal elections. Critics objected because we filed on behalf of the Democratic Party, claiming the identity of the plaintiff risked making voting rights partisan. They predicted we would lose. When we won a preliminary injunction, they warned we could still lose on appeal. After the DOJ declined to appeal, the critics went silent.

It is not that those urging caution support Trump’s lawless agenda. On the contrary, they all voted against him. But they see the threat he poses as limited — more incompetent than malevolent. They view this moment as a political crisis, not an existential crisis for democracy. They insist we take him seriously, but not literally.

This is why they have ambivalent views of me and others in the pro-democracy community. They believe we are risking the development of the law. They accuse us of exaggerating the threats to our country and democracy. They reject the idea that we are in, or near, a constitutional crisis.

Most importantly, they disapprove of us speaking up in the media and in the public square. They advocate for lawyers to "let their court filings do the talking" instead of appearing in the media or writing articles like this one. Some even claim we dilute our court victories by celebrating and explaining them publicly.

That is why Justice Sotomayor’s support for the aggressive pro-democracy movement is so important at this critical time. She understands that while we must bring difficult cases and be willing to lose, we must always fight to win. And by lending her voice in "solidarity," she affirmed that it is "our time to stand up and be heard."

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