Sonia Sotomayor is far from my favorite Supreme Court Justice, as she is the court’s most vocal advocate for pro-minority discrimination and a practitioner of touchy-feely law. Still, I assumed she had integrity, or at least my skull did, because it exploded all over the place when it learned the truth.
Federal employment law forbids employers from having unpaid positions unless they meet stringent requirements of providing genuine educational experience to such workers while not personally (as opposed to professionally) benefiting from their services. Nevertheless, Sotomayor has used unpaid interns as her servants —not law clerks or researchers, but servants—since 2010.
Legal ethicist Ron Rotunda (full disclosure: I know Professor Rotunda a bit, and have exchanged legal ethics views with him, though we have never met in person) reveals this bombshell in a recent article, concluding that she is violating U.S. labor laws. No other Supreme Court Justice, indeed no other judge, does this, and no wonder: it is at very least a clear violation of the judicial ethics prohibition of the appearance of impropriety. It is more than appearances, however. Sotomayor is exploiting her position for personal gain.
Justice Sotomayor’s posted job descriptions on a Latino Facebook page—she’s exploiting minority applicants!—says that her potential unpaid butlers, cooks and chauffers don’t need law degrees, but must have a driver’s license because duties will include running “errands outside of the Courthouse.” What is called an intern—you know, like all those interns who live downstairs on “Downton Abbey”?— will prepare “lunch and snacks for the Justice,” make photocopies, answer the phone, and undoubtedly other educational tasks. Living arrangements in D.C.? Not her problem. Transportation costs? They are on their own. They receive no compensation.
Rotunda traces the law and court decisions that mark this as unequivocally illegal; he doesn’t speculate why Sotomayor seems to think the law doesn’t apply to her. “Even for nonprofits, the employer must derive no immediate benefit from the intern, ” he writes. “Justice Sotomayor is deriving immediate benefit when her interns run her errands. Such “volunteers” are employees (Tony & Susan Alamo Foundation v. Secretary of Labor, 1985).”
He also points to another case, In Archie v. Grand Cent. Partnership, Inc. (1998), in which a judge ruled that nonprofits had to pay the minimum wage to formerly homeless “interns” who performed clerical and food service. Despite the defendants’ intent, the judge wrote in the opinion, “they did not structure a training program as that concept is understood in case law and regulatory interpretations but instead structured a program that required the plaintiffs to do work that had a direct economic benefit for the defendants. Therefore, the plaintiffs were employees, not trainees, and should have been paid minimum wages for their work.”
The judge was Sonia Sotomayor.