Tuesday, June 23, 2009

Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions])

This is the 5th post on New York Court Watcher examining the record of Judge Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.)

Unless you've been stranded with the survivors on Lost in a different time warp, you know that Sotomayor is President Obama's nominee for the Supreme Court to replace the outgoing Justice David Souter. In the previous posts on New York Court Watcher, we've looked at Sotomayor's judicial opinion record, the ideological patterns in those opinions, contrasts with her colleagues, and some common threads tying her opinions together.

This post will identify a couple of hits, misses, and downright rotten apples among her opinions as a federal appeals judge. Just a couple in each category. Nothing magical about 2 each. Just didn't want this post to go on too long. And of course, these are my personal (if, hopefully, professionally informed) evaluations. But I don't think I'm too far off the mark on any of them.

The Good (Il Buono [Clint Eastwood])

--U.S. v. Lopez (2008). This case involved a formerly legal immigrant who was deported and subsequently convicted for illegal reentry when he returned. The problem was that the deportation order was tainted. He had been told--first by the immigration judge and then by the appeals board--that he had no right to a judicial review of the deportation order. Actually, however, he did.

Writing for the majority, Sotomayor avoided a rigid, mechanical ruling. I.e., the defendant was deported, he reentered, so he's guilty, period.

Instead, Sotomayor took account of the special facts. I.e., the government's responsibility for depriving the defendant of a judicial review of the deportation order. Her opinion explained that the trial court that convicted the defendant had to reconsider the conviction in light of the government's misinformation. If the resulting treatment of the defendant was found to be fundamentally unfair, then the conviction could not stand.

--U.S. v. Gori (2000). This case involved a police stake-out of an apartment which they suspected was used for drug dealing. The police waited in the hallway, hoping to see something. They could do little else, because they didn't have a warrant or the probable cause to obtain one.

When the door of the apartment opened for a food delivery, however, the police--displaying their shields and holding their weapons--ordered the occupants into the hallway and against the wall. One thing led to another, the police obtained consent to search the apartment, and they found drugs.

Sotomayor's colleagues saw no problem with the police conduct. For them, the critical fact was that an occupant of the apartment had voluntarily opened the door, exposing the others to the police.

Sotomayor dissented. As she saw it, the critical fact was that the police had seized the occupants from the apartment without the requisite constitutional justification--i.e., a warrant, or probable cause and some emergency. As she explained, mere reasonable suspicion may be sufficient to briefly detain individuals who happen to be in a public place. But the Constitution, as spelled out in relevant 4th Amendment case law, requires more than that before the government is allowed to exercise authority over individuals inside a private residence.

The Bad (Il Cattivo [Lee Van Cleef])

--Kelsey v. County of Schoharie (2009). This case involved a "clothing exchange" for newly arrived inmates of a county jail in upstate New York. Upon admission to the jail, inmates are required, among other things, to surrender their street clothes, take a shower, and don the inmate uniform.

Sotomayor's colleagues [in a well-reasoned opinion by Judge Roger Miner] found the procedure to be perfectly justified for health, safety, and discipline reasons. She, however, dissented on the ground that the procedure was an unconstitutional strip search. According to her, it was a strip search because the inmates' private parts were sometimes exposed to the guards. And according to her, it was unconstitutional because the 4th Amendment requires reasonable suspicion that the inmate has contraband or a weapon to justify such a search.

Sotomayor's (understandable) antipathy to required stripping is evident elsewhere. (See e.g., her dissent in N.G. & S.G. v. Conn [2004] against strip searches in a juvenile detention facility; she may well have had a stronger argument in that case.) That antipathy seems to have blinded her to the compelling administrative purposes served by a "clothing exchange" when inmates are being prepared for incarceration.

--U.S. v. Falso
(2008). This case was discussed in a previous post. (See Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions), June 5, 2009.) As I wrote there:

"In [this] case, Sotomayor authored a majority opinion upholding child pornography convictions. The problem was that the evidence supporting the convictions was obtained through an unconstitutional search. All the judges agreed on that. And they all agreed that the evidence normally could not be used. (For those unfamiliar, that's what's called the "exclusionary rule.") Nevertheless, Sotomayor argued that it was okay for the prosecution to use the evidence in this case because the investigating officer's mistake in conducting the search was made in good faith. (For those unfamiliar, that's what's called the "good faith exception" to the exclusionary rule.)

"The problem with THAT, however, as the dissenter made clear, was that the police officer in the case had not acted in good faith at all. Yes, the officer had a warrant authorizing the search. But he had recklessly disregarded the truth, and perhaps deliberately lied, when he himself obtained the warrant--which all the judges agreed was no good.

"It is very difficult to read the opinions in that case--Sotomayor's and the dissenter's--without concluding that Sotomayor had stretched the law and the facts. It's pretty evident that she did so in order to be able to uphold the child pornography convictions. Outside the realm of child pornography, pedophile, and related child victimization cases, Sotomayor's record of supporting the rights of the accused strongly suggests that she would not otherwise have ruled the way she did."

The Ugly (Il Brutto
[Eli Wallach])

--Ricci v. DeStefano [City of New Haven] (2008). This is the New Haven firefighters case that has gained considerable notoriety. In short, the city discarded a test for promotions because non-white takers had performed poorly. Some firefighters with high scores on the test were denied promotion in favor of some non-white firefighters who had not done nearly as well. The city was sued for "reverse discrimination"--i.e., racial discrimination in favor of African-Americans over white-Americans in violation of the Equal Protection guarantee of the 14th Amendment.

This is not an easy case. Yes, blind ideologues on the left and on the right think it's easy. They each think their respective opposite views are clearly correct. The city's action was clearly legal; it was just as clearly illegal. That's a fairly good indication that the issues aren't clearly one way or the other.

The trial judge presiding over the lawsuit wrote a lengthy opinion exploring the issues and dismissed the claim of discrimination--i.e., upheld the city's affirmative action. A year and a half later, that trial decision was affirmed by the 2d Circuit. Specifically, by a 3-judge panel that included Sotomayor.

The decision reached by Sotomayor and her 2 colleagues is not really the problem. Not the worse one anyway. [I may think their decision is wrong; right-wing blowhards are sure it is. Others may think it's right; some knee-jerk liberals, with whom I more frequently agree, are sure it is.]. But come on, this is a toughie. Race blindness versus diversity. Both compelling interests. In conflict.

So the real problem is not the decision itself. But how that decision was rendered. Cavalier, covert, and--I'll be blunt--cowardly. Let me explain.

Sotomayor and her 2 colleagues on the panel decided this important, controversial, difficult constitutional case with a summary order. Yes, summarily. In a one paragraph opinion--six sentences--"explaining" the decision. In fact, the opinion was simply a few conclusory lines, with precious little that could be mistaken for legal analysis. Surely the case deserved more than that. Even if Sotomayor and her 2 colleagues, for whatever reason, really thought that the claim of the firefighters who were denied promotion was devoid of any legal merit justifying a more serious treatment.

Worse than that, the summary order was unpublished. Yes, that pitiful one paragraph opinion of Sotomayor and her 2 colleagues for this extremely important case was not to appear in the published reports of the court's decisions. It was to be buried among other summary orders. Decisions of the court typically involving matters having absolutely no consequence or implication beyond the particular dispute between particular parties. Of course, the Ricci case does not fit into that category at all.

The summary order remained unpublished until other judges on the 2d Circuit complained. They made clear that they believed such cursory treatment was inappropriate. Sotomayor and her 2 colleagues then withdrew the unpublished summary order, changed a few words, and reissued it for publication. As a per curiam opinion.

And what's the significance of a per curiam ? Well, these opinions--literally "for the court"--are usually (but not always) reserved for decisions that break no new ground, decisions where the law is well settled, decisions not requiring extensive legal analysis, decisions not meriting full-blown legal analysis and explanation for the court's judgment. Sooooo, Sotomayor and her 2 colleagues issued a per curiam opinion comprised of the 1 substantive paragraph--6 sentences. Entirely inappropriate for a case of this significance, this difficulty, and the competing compelling interests at stake.

But beyond that, what a per curiam opinion means is that no one signs. No one claims authorship. None of the judges takes responsibility--the credit or the blame--for writing the opinion and for choosing what to include or not. (Or they all take responsibility. Meaning, again, that none of them takes individual responsibility for the opinion. Judges usually want to take credit for important opinions. So when they avoid it--especially for the important cases--you know something is up.)

[I've observed this phenomenon of appellate judges issuing cursory unsigned opinions. Even in very important and difficult cases which surely required more. I observed this first hand as a law clerk and subsequently as an academic studying the official reports of judicial decisions. The company line from the courts is that these short unsigned opinions--per curiam or memorandum--are used for the readily disposable, easy cases where the controlling law is well-settled and clear. Was the Ricci case that?
In truth, these unsigned writings are also used where the court or the judge assigned to write the opinion wishes to avoid confronting the difficult or controversial issues raised in a case and does so by simply writing a few innocuous lines that don't fully reveal what's actually at stake. Or the judges of the court cannot agree, so one of them writes a few lines that muddies the issues, glosses over the differences among the judges, says very little, decides even less, disposes of the case, and avoids saying anything that would be unpopular either within the court or with interested parties or the public.
In short, these cursory unsigned opinions are usually pretty poor exemplars of judicial decision-making. And often they are little more than a means to avoid difficult choices or criticism. Remember, judges sign opinions they're proud of.]

Neither Sotomayor nor either of her 2 colleagues on the panel took personal credit (or blame) for the Ricci opinion. We do not know exactly the reasons. What we do know is that Sotomayor either 1) wrote the opinion and didn't sign her name, or 2) she didn't write that opinion and somehow didn't think it necessary to author a more adequate separate one of her own. Either way, she was part of this rather shameful exercise. Cavalier, covert (until pressed into the open), and cowardly.

The Supreme Court granted review of the Ricci case. The Justices apparently thought the case important enough, involving sufficiently unsettled and unclear law, to deserve a full hearing and decision by the nation's highest Court. Their decision should be issued any day now. I'm betting the Justices will write more than 6 sentences.

--Didden v. Village of Port Chester (2006). This was a case involving governmental taking of private property, against the wishes of the owner, for economic development by a private firm. It raises many of the issues involved in the very controversial 5-4 decision of the Supreme Court in Kelo v. New London (2005).

As the Supreme Court did in Kelo, the 2d Circuit in Didden upheld the governmental taking. However, unlike the Supreme Court in Kelo and unlike other courts applying Kelo, the 2d Circuit panel rendered its decision in an unpublished, unsigned, summary order. In Kelo and in several decisions by other courts applying it, the issues were fully examined and the conclusions fully explained. In Didden, the 2d Circuit disposed of the case in a cursory 3 paragraphs.

The unpublished, unsigned, 3-paragraph decision was rendered by Sotomayor (the senior judge on the panel) and 2 colleagues. As in Ricci, Sotomayor acquiecsed in the disposition of a very difficult, important, and controversial case in a wholly inadequate and, arguably, shameful manner. Certainly unworthy of a distinguished federal appeals court, as well as a nominee for the Supreme Court.

There it is. The (2) good. (2) bad, and (2) ugly. Hopefully this sheds some light on President Obama's nominee for the high court which--as far as I have read and heard--has been missing from the general coverage.