“Why the double standard? Sotomayor apologizes for an accurate reflection on class, but Thomas rants on about every judge with whom he disagrees philosophically.” – Ted
Hi Ted,
I’m not sure who is applying a double standard here. But I think I understand what you’re getting at. At least, I can explain what it means to me and what, in my view, it says about the Supreme Court.
For context, let’s start by recapping the two justices’ recent public comments that raised eyebrows for different reasons.
Justice Sonia Sotomayor’s apology stemmed from her appearance at a law school event in Kansas earlier this month. There, she mentioned Justice Brett Kavanaugh’s ruling last year that sought to justify the Trump administration’s immigration stops. The Obama-appointed justice didn’t criticize her Trump-appointed colleague by name. But she clearly referred to him when she said the opinion came from a man “whose parents were professionals” and “probably doesn’t really know any person who works by the hour.”
She later issued a public apology, saying she “made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”
While Sotomayor apologized before the nation, Thomas delivered an unapologetic denunciation of progressivism as a dangerous ideology that betrays the godly ideals that forged the nation.
That denunciation came in a speech he gave in Texas tied to the upcoming 250th anniversary of the Declaration of Independence. The Wall Street Journal’s opinion page published an excerpt of the speech, which it headlined, “Justice Thomas: Progressives vs. the Declaration.”
In his speech, Thomas said progressivism “seeks to replace the basic premises of the Declaration of Independence and hence our form of government,” because, he added, “it holds that our rights and our dignities come not from God but from government.”
His remarks prompted predictable reactions.
A policy expert at The Heritage Foundation, a group that has helped shape the modern conservative movement all the way up through its Project 2025 for the second Trump administration, called Thomas’ speech “a clarion call to conscience.” In the piece that described the justice’s remarks that way, the foundation’s expert wrote, “In a manner reminiscent of William F. Buckley’s skepticism toward progressive utopianism, Thomas issued a warning against Wilsonian progressivism.” Buckley, of course, was a crucial figure and voice behind the conservative movement.
Going the other way, prominent liberal legal scholar Erwin Chemerinsky observed, “A conservative Supreme Court justice broadly condemning progressive ideas, and claiming they are responsible for the worst atrocities of the last century, is the antithesis of helping to find common ground.” Similarly, MS NOW columnist Paul Waldman argued that Thomas revealed “his contempt for the foundations of our democracy — one that is all too common among conservatives today.”
I recommend watching the justice’s remarks in full (plus the Q&A session after), linked here. They covered a lot of ground and were even moving at times, especially when the justice recounted his own personal life story. He’s probably the most interesting justice on the court today by far, though that might say more about the relatively staid paths that most of his colleagues took to get there.
But whatever else there is to say about Thomas’ speech, it’s unserious to pretend that it wouldn’t be perceived, at least by some Americans, as a political speech rather than a legal one. Contrast it with Justice Ketanji Brown Jackson’s recent lecture at Yale Law School, which was also forceful but focused on a particular legal phenomenon unfolding at the court, namely the court’s use of what some people (myself included) call the “shadow docket” (Jackson said she prefers the term “emergency docket” to refer to the court’s fast-track actions, while Kavanaugh said he prefers the even milder “interim docket” label).
Now, does that mean Thomas should apologize for his speech because it offended some people? I don’t think so. Nor would I have argued that Sotomayor needed to apologize. He gave his views, and she gave hers.
To be clear, I don’t think there’s an equivalence between their respective remarks. Thomas prompted criticism in response to his sweeping, prepared comments. Sotomayor made more of an offhand statement that happened to describe her colleague in realist terms; I don’t think anyone is suggesting she said anything incorrect — only, arguably, by the standards of elite legal discourse, impolite.
So, I could see an argument that someone would have been applying a double standard had they demanded that Sotomayor apologize while saying nothing about Thomas. But even then, the distinction is less about whether their comments offended their critics but rather the fact that Sotomayor’s statement focused on a fellow justice in personal terms, even if accurately so, while Thomas’ comments did not, even though his speech overall could fairly be called much more controversial.
Ultimately, Sotomayor’s apology speaks to a legal cultural norm that prioritizes civility over more substantive concerns. Meaning, one could take away from the two justices’ remarks that it’s OK to say whatever you want, as long as you don’t approach calling out a colleague directly, but you can’t make a realist observation about a colleague’s background that may have informed their legal opinion, no matter how true that observation is.
Personally, I think it’s good when the justices speak their minds, however insightful, rancid or benign their thoughts are, so the Americans bound by their rulings can know more about the people who are crafting crucial decisions affecting the nation.
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