Giving Public Opinion the Process That is Due: What the Supreme Court Can Learn from Its Eighth Amendment Jurisprudence

Justice David H. Souter announced his retirement from the Supreme Court in April 2009, handing President Barack Obama his first opportunity to shape the high court. 1 A month later President Obama nominated Sonia Sotomayor to fill the open seat. 2 During the confirmation process, Republican opposition criticized Sotomayor for a statement she made during a 2001 speech: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” 3 Critics pointed to Sotomayor’s remark as evidence of her philosophical bias. 4 Public dissemination of the statement created a political backlash, which, while not in the magnitude of past confirmation battles, 5 caused headaches for the Obama administration. 6