Sonia Sotomayor One-Ups Stephen Breyer’s Dissent to Rip Into Her Conservative Colleagues

Breyer tried but, ahead of his retirement, he's clearly enjoying a senior spring.

Sonia Sotomayor One-Ups Stephen Breyer’s Dissent to Rip Into Her Conservative Colleagues
Photo:Getty Images (Getty Images)

On Tuesday, the Supreme Court released five opinions. None of them were the opinion—the one that will likely overturn Roe v. Wadeso U.S. women were granted a momentary sigh of relief. The next opinions won’t drop until Thursday, so we have at least roughly 41 more hours of constitutionally guaranteed reproductive freedom as of publication. Celebrate “I Still Have The Right To My Uterus” Girl Summer while you can.

But one of the decisions announced Tuesday was in Carson v. Makin, in which the conservative-majority court ruled that the state of Maine cannot exclude religious schools from a state tuition program. That basically means the state is now required to use taxpayer dollars to fund religious education. Chief John Justice Roberts wrote the opinion, Justice Stephen Breyer wrote the dissent, and Justice Sonia Sotomayor wrote the good dissent.

Breyer’s conclusion was fairly anodyne. “State neutrality with respect to religion is particularly important,” he wrote. He’s retiring at the end of this term and it appears he’s enjoying a senior spring. Since his dissent was severely lacking in the outrage necessary to convey how deeply antithetical this decision is to the country’s founding, Sotomayor stepped in to pick up the slack.

Opening her dissent, she wrote: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” Mentioning the Framers is essentially Sotomayor calling her conservative colleagues a bunch of fucking hack jobs—especially Amy Coney Barrett, who, in her Senate confirmation hearings, said she considered herself an originalist and believes that the Constitution’s meaning “doesn’t change over time” and that it is not up to her “to update it or infuse my own policy views into it.”

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—but requiring a state to use taxpayer money to pay for religious school tuition feels very much like “respecting an establishment of religion.” If this isn’t Barrett “updating” or “infusing” her own policy views, then just call me the newest member of the People of Praise!

Sotomayor ended her dissent in a scorched-Earth paragraph, writing (emphasis ours):

What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us…to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” …Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

To be clear, we’re not giving Sotomayor a standing ovation for this dissent. Consider this a quick “hey, nice one,” before we return to our day. After all, as recently as last week, Sotomayor praised right-wing Justice Clarence Thomas, saying that they “share a common understanding about people and kindness towards them.” No thanks!

But we do enjoy it when liberal justices one-up each other for the sake of sticking it to their conservative colleagues. With the fall of Roe expected within the next two weeks and with our own “growing concern for where this Court will lead us next,” it’s one of the few joys we have left.

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