Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions)

There are some readily identifiable interests that tie Judge Sotomayor's opinions together. Indeed, these interests seem to explain opinions which might otherwise appear somewhat atypical for her, or which are not easily reconcilable with the underlying facts or law.

Let's look at 4 particularly salient ones. When these interests have been involved in a case (and again, we are speaking of the difficult, divided cases in which Sotomayor wrote either the majority or dissenting opinion), they seem to have determined the result she reached.

Protecting children, insuring criminal due process, holding business accountable, and weeding out unequal treatment of minorities. These interests have been very good predictors of the outcome Sotomayor would support in her opinions.

Here they are depicted graphically.

GRAPH 1
Common Threads in Sotomayor's Opinions
(click to enlarge)


As shown in Graph 1, in the divided cases where the protection of children was somehow involved, Sotomayor always argued in her opinions for the result that promoted that interest. That is, in 5 out of 5 difficult, divided cases where that interest was implicated, she argued for the interpretation of the facts and the law that supported the outcome most favorable to safeguarding the welfare of minors. These cases involved such matters as investigating child pornography, prosecuting sex with minors, strip searching juveniles in detention, and minors suing a charitable institution.

In those cases involving criminal due process--i.e., the fairness of procedures and treatment--she adopted that interpretation of the law and facts favorable to the suspect, accused, or convicted in 80% of her opinions. That represents 12 out of 15 difficult, divided cases.(Actually, these do not include 3 cases involving crimes directed at protecting children. I'll explain why I have excluded them shortly.) These cases involved such matters as search and seizure, the prosecution's burden of proof, sentencing, and deportation based on criminal convictions.

In those cases involving holding business accountable, her opinions argued for being tough on business 90% of the time. That's 9 out of 10 close, divided cases. These cases involved such matters as excise tax and bankruptcy fraud prosecutions, anti-trust, employment discrimination claims, and negligent product design.

Where discrimination against minorities was claimed, she found the claims had merit in all her of opinions. That's 6 out of 6 cases that were difficult enough to divide her colleagues. These cases--oftentimes related to business accountability--involved claims of sex, race and disability discrimination in employment, education, and voting rights.

To understand how significant the foregoing figures are, remember this. These interests that Sotomayor strongly favors do not arise in a vacuum. They are certainly all worthy. But in the difficult, close cases we are focusing on, these interests are always competing with others that are also quite important.

For example, protecting children sometimes competes with interests in religious freedom, parental rights, privacy, and free speech to name a few. Criminal due process typically competes with crime control and just punishment--especially compelling when the crimes being investigated or prosecuted are particularly heinous. Business accountability often competes with a robust free market and other commercial interests. Weeding out inequality often competes with personal and institutional choice, often made for reasons having little or nothing to do with intentional discrimination.

Regardless of competing considerations, however, Sotomayor overwhelmingly took positions to favor the 4 interests identified. Stated otherwise, those other considerations were subordinated to her favored interests in virtually all the opinions she wrote in cases where there was a conflict.

This point is underscored by contrasting Sotomayor's record with that of her colleagues. Specifically, let's contrast the frequency with which Sotomayor argued in support of the 4 interests we've identified, with the frequency that the majority of her colleagues--i.e., the court--did so in the same cases.

GRAPH 2
Common Threads in Sotomayor's Opinions
Versus Her Colleagues
(click to enlarge)


The contrast is quite substantial. In fact, the frequency with which a majority of her colleagues sided with Sotomayor's favored interests in these divided cases is too low to consider any of them a common thread in the majority opinions. Certainly not to any degree approximating that in her opinions.

Protecting children: Sotomayor, 100%. The majority of her colleagues, 60%. And that's the closest it gets. Criminal due process: 80% - 33%. Business accountability: 90% - 50%. Minority equality: 100% - 33%.

Let's conclude with an of example of how these common threads in Sotomayor's opinions--i.e., her favored interests--have affected the results she reached. Consider what appears to be her overriding interest in protecting children, and how this has played out in her review of convictions for crimes involving child victims.

We've already discussed (both in this post and the immediately preceding one) that Sotomayor's opinion record in criminal cases is quite liberal. She strongly favors the rights of suspects, accuseds, and the convicted. As we just saw, her opinions sided with the claims of criminal due process in 80% of the divided cases (as contrasted with the 33% for the majority of her colleagues in the same cases).

I said earlier that the criminal cases involving child protection are not included in these figures. I excluded them to highlight the impact that the consideration of child protection has on Sotomayor's opinions. While her opinions sided with the claims of due process violation 80% of the time (i.e., excluding cases involving crimes against children), her opinions NEVER sided with such due process claims when crimes of child victimization were involved. In 3 out of 3 divided cases involving crimes of child victimization, she OPPOSED the due process claims. 100% conservative! That, however, coincides with Sotomayor's 100% opinion record--in both criminal and civil cases--of taking the side more protective of children, or more tough on their offenders.

U.S. v. Falso (Sept. 2008) is instructive. In that 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.

Similarly, it is pretty clear when reviewing all of Sotomayor's opinions in the close, divided cases, that each of the common threads identified here--i.e., her favored interests--has influenced the positions she has taken. Most judges, if not all, are affected in like manner. No doubt, some more than others. For Judge Sotomayor, her opinions evince considerable influence from some interests that are readily identifiable.


This has been the 4th in a series of posts on New York Court Watcher examining the judicial record of Supreme Court nominee Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May28, 2009.) Forthcoming posts will look at some selected opinions--representative of her best and the opposite--and at some of her non-judicial statements and writings that are currently causing such public and partisan-political stir.

(Part 11--Sotomayor's & Kagan's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama, are the Court's newest members. Sotomayor joined the Court in August 2009. Kagan in August 2010. Consequently, unlike the other Justices whose records we have already reviewed, Sotomayor and Kagan have participated in only a few of the racial discrimination cases decided by the Court under Chief Justice Roberts.

Sotomayor has participated in only 7. Kagan in only 5. That's not much of a record for either Justice. Indeed, the sample is simply too small to tell us anything meaningful for some of the categories of voting we've been considering.

On the other hand, for some categories, the voting patterns for Sotomayor and Kagan are so consistent and so clear that even the relatively small samples are revealing. Let's take a look.

We'll begin with voting on what I've been categorizing as "racial equal protection." As explained in previous posts, this category of voting reflects the degree of support for equal treatment regardless of race--e.g., support for measures to eliminate unequal treatment, whether racial discrimination or racial preferences; support for the enforcement of equal rights and benefits; support for strict equal treatment regardless of whether Whites or Racial Minorities favor the result or may be the beneficiaries in any particular case.

(click graphs to enlarge)

GRAPH 1

The figures depicted in graph 1 reflect voting in 5 non-unanimous cases for Sotomayor, and 4 for Kagan. Notably, although the samples are relatively small, both Justices voted in support of strict equal treatment in every one of the cases in which they participated. These involved enforcing voting rights protections, supporting racial discrimination lawsuits, enforcing laws against retaliation, and prohibiting racial preferences in college admissions absent the showing of a compelling need.

Notably also, in all of these cases but one, the Court was divided 5-4, with the 5 Republican Justices on one side and the 4 Democratic Justices--including Sotomayor and Kagan--on the other. Stated otherwise, in every one of those cases but one, the 5 Republican Justices opposed the enforcement of equal treatment; the 4 Democratic Justices supported it.

Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues)

Sonia Sotomayor's judicial record is not only much more politically liberal than conservative. It is also much more liberal than that of her colleagues. (And as the 3 following graphs show, it's not that close.)

This is not being stated as a complaint or criticism. (Disclosure: In the unlikely event it is not readily apparent from what has previously been written on New York Court Watcher, I strongly favor a judge who would be more politically liberal than the current Supreme Court is, and to help change the Court's quarter-century old rightward direction.) No, this is stated simply because it is what Sotomayor's record shows. And because there has been considerable public dissembling and obfuscation about it.

We should know what we are getting in a Supreme Court nominee. We should at least know what her judicial track record is and what it tells us. Even if she should surprise us later and turn into something else once she's confirmed. We should at least know what she has been. That's the best indication we currently have of what she will be. And as we've already seen, Sotomayor's judicial track record is pretty clear. (See yesterday's post: Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.) At least it's clear as to where she falls on a liberal-to-conservative ideological spectrum.

Let's take another look at her record and, specifically again, at its ideological profile. But this time let's take a somewhat different look. Let's look at her dissenting opinions alone. The opinions in which she disagreed with her colleagues. Why? Because these are the most revealing of all.

Yes, all the opinions and votes in the divided cases are revealing. These difficult, controversial, especially divisive cases, where the members of a court simply cannot come together as one, tell us a great deal. Each judge is required to choose a side, and to do so publicly with a vote and maybe even an opinion.

But the dissents in these divided cases are the most revealing of all. They represent the issues which a judge believes to be so important, so much a matter of principle, so incapable of compromise, that the judge is willing to break with her colleagues, and to do so openly. To do so in a written opinion. An opinion explaining why she believes her colleagues are wrong, why she is right, and why the disagreement with her colleagues is too big or too critical to be disregarded or glossed over for the sake of public unanimity and collegiality.

These are the opinions about issues which a judge believes are so important that she is willing to break publicly with her colleagues and to expend the additional time and energy--beyond the shared responsibilities of writing unanimous and majority opinions--to write a dissent. Not a writing for the institution. But a personal one for the judge herself.

Here then is a graphic account of Judge Sotomayor's dissenting opinions--the public disagreements with her colleagues.

GRAPH 1
Ideological Patterns in Sotomayor's Dissenting Opinions
(click to enlarge)
The patterns are even clearer in her dissents than in her combined opinions--majority as well as dissents. Remember, these are the opinions where Judge Sotomayor was writing for herself. Where she choose to take the additional time and energy to express her disagreement with the positions taken by the other judges deciding the case with her. Disagreement with the judges who prevailed but with whom she chose not to go along.

And look how these opinions break down. In cases involving "law & order" issues, she wrote dissenting opinions adopting the liberal position--i.e., more favorable to the rights of the accused--89% of the time.

In the "discrimination" cases, those involving claims of discriminatory treatment of minority or other vulnerable classes, her dissents were 80% liberal--i.e., supportive of the claimants.

In the "privacy" cases, involving bodily, home and conversational privacy, her dissents were 100% liberal--i.e., supportive of the claims that privacy had been violated.

In the "litigation/business" cases, her dissents were 78% liberal--i.e., supportive of the civil litigation or otherwise opposed to or tough on business interests.

Overall, she took the politically liberal position in 82% of her dissents. In short, where she disagreed with the majority of her colleagues--where she openly disagreed with the decision reached by her court--she took the more politically liberal position 82% of the time. Stated otherwise, she took a more politically conservative position than her colleagues in only only 18% of the cases.

Here again is that first graph. But this time it includes the contrast between how frequently Sotomayor disagreed with her colleagues and took a more liberal position, with how frequently she did so and took a more conservative one.

GRAPH 2
Ideological Patterns in Sotomayor's Dissenting Opinions
Liberal vs. Conservative
(click to enlarge)
The contrast is quite striking. And remember, these are her personal opinions. Not institutional. Not collegial. Not compromise. Not glossing over differences. Sotomayor's own positions on the issues important enough to her to justify these public disagreements with her colleagues.

This graph, like graph 1, reflects Sotomayor's positions in the dissenting opinions she authored as a federal appeals judge. There are 20 of them in all; 17 of them break down along politically liberal versus politically conservative lines. Those are the ones visualized in the 2 graphs.

Yes, I know. "But she participated in so many more cases. This is only a fraction." Yes, but it's the fraction that tells us about the judge and her colleagues. Its the fraction that allows us an insight into the "inner sanctum" of judicial deliberations. The fraction that tells us what the judge cares about the most. The fraction that tells us how a judge sides on the tough questions, the difficult ones, the ones that the judges--like the rest of us--disagree about the most. And about which they, like us, feel the most fervently.

And that's why judicial scholars focus on such cases and such opinions. 'Nuff said about that.

Now let's consider one more aspect of Sotomayor's judicial record. How does her record contrast ideologically with that of her colleagues? Let's take a look once again, as we did in yesterday's post, at all Sotomayor's opinions in divided cases. All her majority opinions as well as her dissents. Hence, all the opinions in those tough, controversial, divisive cases (Yes, you know the descriptors by now.) in which the judges just could not disregard their differences and join together as one.

Specifically, let's look at Sotomayor's record in all these cases as contrasted with the record of her colleagues. That is, the ideological patterns in Sotomayor's majority + dissenting opinions as opposed to that of the majority of her colleagues--i.e., the court's decision--in all those cases.

Here it is.

GRAPH 3
Ideological Patterns in Sotomayor's Opinions
Sotomayor vs, Her Colleagues
(click to enlarge)
Okay, it's not even close. Sotomayor took the more politically liberal position more than twice as frequently as her colleagues.

To be clear: in those divided--i.e., non-unanimous--cases in which Judge Sotomayor wrote an opinion, either the majority for the court or her own dissent, she adopted and argued for the more politically liberal position, on the issue in question in those cases, more than 2 times as often as did the majority of her colleagues in those same cases.

And remember, this is the federal appeals court for the 2d Circuit. It sits in New York, New York. This is not the 4th Circuit sitting in Richmond, Virginia. Or the 11th sitting in Georgia. Or the 10th sitting in Utah. This Manhattan court is not one of the more conservative courts in the country. And Sotomayor's record is unmistakeably liberal even by the standards of that court.

(For a list of the kinds of issues dealt with by Sotomayor and her colleagues in the divided cases, see yesterday's post on New York Court Watcher. Again, that's Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.)

In the next post, we'll identify some salient common threads in Judge Sotomayor's opinions. Substantive, not stylistic. (Perhaps we'll discuss a little about the latter in a subsequent post.)

Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Approves the Dreadful Success)

Not surprisingly, the Senate Judiciary Committee approved the nomination of Judge Sonia Sotomayor to the Supreme Court. Not despite her dreadful performance at the hearings. But according to most of the Senators, because of her performance.

Of course, there is little reason to ascribe candor to such assertions.

First: let's assume the Senators are at least sentient human beings, with some understanding of their questions and of Sotomayor's responses. They surely must recognize that she offered virtually nothing of substance about constitutional law, about particular precedents, or about the judicial process. That her answers evinced only the most superficial and simplistic familiarity with the bare-bones holding of some cases, and a grade school recitation of what judges do. Such a performance could not really impress the Senators who claimed it did.

Second: unless, of course, the assumption is unwarranted. It is possible that the Senators who questioned Sotomayor know even less about the law and understand even less about what judges actually do than Sotomayor's responses suggested about her. It is possible that the Senators' familiarity--let alone understanding--of the matters about which they were questioning Sotomayor is even more superficial and even more simplistic than what she showed in her responses. Is that the explanation? Well, there are some who are insisting just that.

But regardless of the foregoing, or of any other variation on those possibilities, let's consider this. A reality--or lack of it--in the fascinating world of senatorial partisan politics. Every Democrat on the Senate Judiciary Committee voted to approve Sotomayor's nomination. All 12. On the other side of the aisle, every Republican but one voted against her. All 7 except Lindsey Graham of South Carolina. Now just consider what the odds are that those votes reflect the Senators' honest assessments of Sotomayor.

Every Democrat supposedly thought Sotomayor did well. Every Republican, but 1, supposedly thought she did poorly. What are the odds?

Let's be clear. How likely is it that all 12 Democrats honestly believed that Sotomayor's performance at the hearings was so strong that it showed or confirmed that she would make an outstanding Supreme Court Justice? How likely is it that all 7 Republicans but 1 honestly believed that her performance was so unsatisfactory that it showed or confirmed that she was not fit to be a Justice? And just how likely is it--what are the odds--that those 2 phenomena would occur simultaneously? All the Democrats and all the Republicans but 1 honestly reaching conclusions about Sotomayor that just happen to coincide with their respective partisan politics?

You don't have to be a mathematician. It's an extreme longshot at best. (Far longer than anything you'd ever see on the Saratoga toteboard.) I'm told it's well beyond 100 to 1 or even 1,000 to 1. More in the order of 100,000+ to 1. "Basically no chance" that 18 of the 19 Senators' honest assessments of Sotomayor's performance would just happen to align with their respective political party's preferences.

(These odds are even higher than those for the Justices' votes in Bush v. Gore. Now whatever one might think of the ultimate 5 to 4 result in that case--vote recount stopped and George W. Bush elected--the voting (as well as the reasoning) was judicially implausable.
What are the odds that the 5 more conservative Justices on the Supreme Court would honestly and impartially interpret the Constitution in such a way that just so happened to help Bush? ["What a splendid coincidence, Clarence!" exclaimed Justice Scalia to an equally surprised Justice Thomas. (I just made that up, reader. Although I wouldn't be surprised...)]
And the 4 more liberal Justices would honestly and impartially interpret the Constitution in a way that just so happened to help Gore? ["Tell me Ruth, how could THEY not see what we see so clearly and objectively?" asked a frustrated Justice Stevens of Justice Ginsburg. (Again, reader, I made that up.)]
Once more, you don't have to be a mathematician to know that the odds are very very long indeed. There's very little chance.
And there's even less of a chance that the assessment of Sotomayor was honest and impartial where 18 of the 19 Senators just happened to fall along political lines.)

The reality of it all is plain. Party and ideology. A liberal Democratic President nominated Sotomayor. The Democratic Senators on the Judiciary Committee voted for her because of their party allegiance to the President, and because they are basically liberal like him and his nominee. Additionally, Sotomayor's performance was not a political disaster that would have made it too risky to vote for her.

The Republican Senators (all but that Lindsey Graham) voted against her because they have no partisan allegiance to the President, and because they are more conservative than the President and his nominee. Additionally, Sotomayor's performance was unimpressive and certainly provided no compelling reason--political or otherwise--to vote for her.

So all the Democratic/liberal Senators on the committee think that the nominee of the Democrat/liberal President proved herself at the hearings to be well qualified for the Supreme Court. All the Republican/conservative Senators, but 1, think the opposite.

As my grandfather would say, "The whole world's a fake."


The next post will take a look at Judge Sotomayor's answers in response to questions about the 2d Amendment. Specifically it will review her explanation of a recent decision in which she participated which held that the Constitution does not protect the right to bear arms against abridgments by state governments.

(Judge Sotomayor's performance at the hearings has been discussed in several previous posts on the New York Court Watcher. See e.g., Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.)

Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions)

Her judicial record is politically liberal. (And the graphs below will show this quite vividly.)

It's certainly not conservative. But neither is it politically centrist or moderate. It is pretty unmistakeably liberal.

Spending countless hours reading Judge Sonia Sotomayor's judicial opinions, and then many more exploring the common threads and bottom lines in them, leads to that rather inescapable conclusion. Unless, that is, one is intent on joining that chorus of supporters who believe they must insist that Sotomayor has no clear political leaning. But that is patently ridiculous. She's a liberal. I'm fine with that. And that is what her judicial record shows.

This is not to say that her record is one of a radical leftist. Only a right-wing conservative could review her opinions and draw such a conclusion. But by the same token, only a rather left-wing liberal could draw the conclusion that she is no liberal, that she cannot readily be classified, that she is really middle-of-the-road.

Let's be honest and clear-eyed. Let's not get caught up in the campaign for Sotomayor. That of the Obama administration, the Democrats, liberal groups, the sympathetic press and commentators, and other supporters. (Let's not get caught up in the right-wing campaign against her either. But much of that has been so outrageous and so irresponsible that it's easier to dismiss.)

She IS a liberal. If she is confirmed by the Senate and takes her seat on the Supreme Court, she will be part of the Court's liberal wing. She will generally side with liberal Justices Stevens, Ginsburg, and Breyer.

She will NOT be joining Chief Justice Roberts and Justices Scalia, Thomas, and Alito as a member of the Court's conservative wing. And neither will she be a moderately conservative swing-vote like Justice Kennedy currently is--or like Justice O'Connor was for many years before her retirement.

Unless, of course, she undergoes a dramatic ideological transformation. Or her judicial record to date actually means exactly the opposite of what it shows.

OK, let's get real, and let's take a graphic look at that record.

GRAPH 1
Ideological Patterns in Sotomayor's Opinions
(click to enlarge)

Graph 1 shows Judge Sotomayor's record to be quite liberal. Overall, and in each of several sub-sets of cases.

The graph reflects the opinions that Sotomayor has written in divided decisions during her tenure as a federal appellate judge. That is, the majority and dissenting opinions she has written while a judge on the U.S. Court of Appeals for the 2d Circuit (which sits in Manhattan) in those cases in which there was some disagreement among the judges.

These are the revealing decisions. Much more so than the others where the judges join together in one decision. Those unanimous decisions--where all the judges agree, at least publicly-- tell us little. We never know for sure whether there actually were internal disagreements among the judges which ultimately were concealed in compromise. Or which never saw the light of day because a disagreeing judge chose not to write a dissent for any one of a host of possible reasons.

But in the non-unanimous cases, we know that the judges felt strongly enough that they couldn't reach a compromise or gloss over their differences. We know that at least one judge felt strongly enough to go public with a disagreement by authoring a dissenting opinion. And we know that the judge writing the opinion for the majority of the court had to respond and explain why she thought the dissenter was wrong.

So these divided cases tell us the most about the individual judges and their views. The dissenting and majority opinions of a particular judge, especially when viewed collectively, tell us a great deal about what she thinks is important, what she agrees and disagrees with.

So Graph 1, as well as the next graph in this post, reflects the opinions of Sotomayor in these very revealing cases. (Forget about the nonsense being circulated about Sotomayor joining in so many decisions with the other judges, conservative as well as liberal. Do you think that conservative Justice Scalia and liberal Justice Ginsburg are on the same political wavelength because they vote together in all the Supreme Court's unanimous decisions? Of course not. If you want to know about a judge, look at how she votes and writes in the more difficult, more controversial cases where the judges publicly disagree--i.e., the divided cases!)

Let's take another look at Sotomayor's record of opinions in the divided cases. This time, to make the ideological patterns even more vivid, let's add to Graph 1 the frequency with which she took conservative positions. This provides a pretty striking contrast.

GRAPH 2
Ideological Patterns in Sotomayor's Opinions
Liberal vs. Conservative
(click to enlarge)
Graph 2, like Graph 1, is based on Sotomayor's majority and dissenting opinions in divided cases. There were 33 in all. 29 of them had readily identifiable liberal versus conservative positions. This graph, like the previous one, reflects Sotomayor's positions in the opinions she wrote in those 29 cases. They represent a very wide range of issues.

In the 'law & order" category, Sotomayor's opinions dealt with jury selection, the sufficiency of evidence to prove guilt, enhanced sentencing for aggravating factors, warrantless searches and seizures, child pornography, sexual misconduct with minors, drug crimes, possession of stolen goods, the ramifications of criminal convictions on other proceedings, and many other issues. She either took a position that was at odds with a majority of her colleagues, or she wrote for the majority against a dissenter.

On those "law & order" issues, she took the more liberal position--i.e., the position more favorable to the rights of the accused--twice as frequently as she took the more conservative one. As Graph 2 shows, 67% to 33%.

The "discrimination" category of cases involved issues of sex, race, and age discrimination. In each of these, it was a member of the minority or vulnerable class claiming the discrimination--i.e., woman, African-American or Hispanic, or elderly. The claims arose in both criminal and civil cases. They involved jury selection, employment, and voting rights. Sotomayor took the liberal position--i.e., siding with the party claiming discrimination--almost every time. As the graph shows, 86% to 14% of the time.

The "privacy" category includes issues of strip searches, wiretapping, and police searches and seizures in the home. Sotomayor objected to the government intrusions on privacy 80% of the time.

The "litigation/business" category includes all those cases with an issue having a pro versus anti civil litigation component to it, or with positions that were sympathetic versus unsympathetic to business interests. Among those were class actions, securities fraud, bankruptcy fraud, employment discrimination, negligent product design, and business tax violation. Sotomayor took the more liberal position--i.e., supportive of civil litigation and unsympathetic to business--in almost all the cases. As the graph shows, 85% to 15% of the time.

Summing it all up. Sotomayor took the liberal position in her majority and dissenting opinions in 72% of the cases.

Now that's not 100% or 90%. But it's not 50%, or 45-55% either. So it is, in fact, pretty clear what Sotomayor's juris-political leanings are. Again, as my Dad would say, let's put the cards on the table.


As I previously wrote on New York Court Watcher, we will look at Judge Sonia Sotomayor's record from several different angles in several posts. (See Sotomayor--Let's Put the Cards on the Table (First, Some Prefatory Comments), May28, 2009.) Tomorrow's post will continue to look at the ideological breakdown of her judicial opinions. We'll look at her record in dissent--dissenting opinions are typically the most revealing of a judge's judicial writings. We'll also compare her ideological track record to that of her colleagues. Is she all that liberal when compared to them? Or even more so? (Yes, I hate those damned teasers too. But I want to wrap this one up for today, because I do want to make sure I finish the next post for tomorrow.)

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.

Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings)

[Yes, at the time of my last post several days ago, I expected to write this post "tomorrow." Well, I guess I'm suffering from Arizona withdrawal and am not quite back into the swing of things. I may also be suffering from hearings overload--glued to the TV for the 4 days--and now hearings withdrawal.]

Judge Sonia Sotomayor's performance at the Senate Judiciary hearings was a success only in the barest, crassest political sense. She avoided saying anything useful as ammunition for conservative Republicans to use against her. But in a substantive sense, her performance was dreadful.

Her testimony was devoid of virtually any meaningful legal, judicial or governmental content. Were she a student of mine, I could not honestly give her a passing grade. (For some prefatory comments to the same effect, see the preceding post on New York Court Watcher: Sotomayor--Let's Put the Cards on the Table (The Hearings--Disappointing at Best), Jul 15, 2009.)

Assuming that Sotomayor was being honest in her testimony, she utterly failed to demonstrate an understanding of, or even much familiarity with, the Constitution, constitutional law, Supreme Court jurisprudence, the role of the Court in safeguarding rights and liberties, or the Court's position in the American tripartite and federal form of government. Indeed, again assuming her honesty in testifying, she affirmatively demonstrated an appalling lack of understanding or familiarity with these absolutely essential matters.

I know that my saying this is upsetting to many fellow liberals, Democrats, and supporters of President Obama. But what's true is true. Sotomayor's performance was simply the weakest--by a wide margin--of any recent Supreme Court nominee to appear before the Senate Judiciary Committee.

Let's be frank, if President Bush (#43) had nominated anyone as lacking in substance at the hearings as Sotomayor, liberals and Democrats would be aghast. We were so when President Bush (#41) nominated Clarence Thomas. But even Thomas's performance was not nearly as weak as hers.

Yes, the hearings are in large measure a game of gotcha by the opposing party. The Senators of the opposite party try to trip the nominee into saying something damaging. The nominee tries to avoid saying anything that might spell trouble. But that has been the nature of the hearings for some time now. And other nominees did not sound so clueless.

The nature of the hearings were the same for Chief Justice Roberts and for Justice Alito. The same for Justices Ruth Bader Ginsburg and Stephen Breyer. The same for the Justice who Sotomayor will replace, David Souter. Yet all of them demonstrated a firm grasp of the case law and the Court. More than a firm grasp. A mastery. Whether one agreed with them or not--politically, philosophically or jurisprudentially--there was no denying that they were each extraordinary capable, knowledgeable, and thoughtful.

The same can not be said honestly about Sotomayor. Whether one likes the way Sotomayor will likely vote on the Court (and I do)--i.e., with the liberals--there is no denying that she failed to prove herself in the same league with Roberts, Alito, Ginsburg, Breyer, Souter, or others in recent memory.

Like others who follow the Court, I love watching these Senate confirmation hearings. Even if much of the questioning by the Senators is inane, at least we learn a good deal about the nominee. Sure, the nominees usually try to conceal their ideological leanings. They usually are very cautious. They usually do their best to avoid controversey. But the depth and breadth of their understanding of constitutional law and the Court's role in our republic becomes pretty clear. Certainly, this was the case for all recent nominees.

But this was not true of Sotomayor. The depth and breadth of her understanding was not clear at all. Indeed, based on her responses at the hearings, there is reason to doubt any such depth or breadth on her part. Let alone any mastery. And depth, breadth and even mastery--and not much less--is what we should expect in a nominee for the Supreme Court.

If I sound frustrated, it's because I am. Let me be clear. I am thrilled to have an Hispanic Justice on the Court. I am thrilled to have another woman. (Indeed, I think there should be many more. [An earlier post on New York Court Watcher identified several of the nation's finest woman judges on state supreme courts around the country, and I opined that they would collectively comprise a much stronger Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.])

I have wanted to support Sotomayor for those reasons. As well as because I believe she will largely vote the way I would. And because I want to believe that President Obama made a good choice. (Several earlier posts on the New York Court Watcher examined the ideological patterns--largely liberal--in Sotomayor's opinion record as an appellate judge on the 2d Circuit. 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.)

But Sotomayor's performance at the hearings was nothing short of abysmal. And that added to the general mediocrity of her opinions as an appellate judge on the 2d Circuit makes me very disappointed--and, yes, frustrated--with this pick of Obama's. (For a look at some of Sotomayor's best and worst opinions--in my view, that is--see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009.)


In the next post, we'll look at some specifics of Sotomayor's testimony at the hearings. We'll look, for example, at her responses to questions about gun rights, "fundamental rights," the Ricci case and affirmative action, the right to privacy, judging and the role of judges, "empathy,"and even self-defense.

Part 8: Focus on Justice Sotomayor. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Sonia Sotomayor.

Appointed by President Obama.

Her votes on guns? Gays? God? Immigrants? Campaign finance?

Just guess!

And you'd probably guess right.

We looked at Sotomayor's record when she was nominated and being confirmed for the Supreme Court.

We looked at her voting and her opinions as a federal appeals judge.

Republicans were insisting she was unsuitable, and even a racist, because of her "wise Latina" comment.

Democrats were insisting she was a "moderate" without an ideological bent.

She was insisting that her role as a Justice would simply be to "apply the law" and not to make law or policy.

Of course, what both the Republicans and the Democrats were saying was pure nonsense.

And what she was saying was at least as preposterous.

We discussed all of that on New York Court Watcher in a series of posts. Among other things, we examined Sotomayor's record on the 2d Circuit Court of Appeals. It was pretty revealing. Indeed, it was pretty plain for anyone willing to take a look.

And for anyone who bothered to take a look--or simply to read the discussions and look at the graphs on New York Court Watcher!--there would be no surprise with what Sotomayor's record on the Supreme Court would be.

Her record was one of a political, ideological liberal, and, of course, she voted to make law and policy just as every appellate judge does.

[For the examinations of Sotomayor's record on the 2d Circuit, see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (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.) See also Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment), Aug. 4, 2009.

For discussions of her confirmation hearings, see Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.]

So let's look at Sotomayor's record at the Supreme Court. Just as we have for the other members of the Court we've already focused on in this series.

As I've previously suggested: no surprise.

(The combined list) Update--Supremely Polarized: Partisanship Continues to Prevail

Here's the complete list, combining those from Supremely Polarized: Partisanship Continues to Prevail and the Update.
(As in those previous posts, the Democratic Justices are in blue, the Republicans in red, and Kennedy in purple. (How clever.)

Gotta say it one more time: voting like judges or partisan politicians?
The list:

Alabama Legislative Black Caucus v. Alabama, upheld the claim of racial gerrymandering.
5 (Breyer [wrote Court's opinion] + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia [wrote dissent] + Roberts, Thomas, Alito) 

Kerry v. Din, upheld the visa denial to a citizen's spouse without any judicial review.
5 (Scalia + Roberts, Kennedy, Thomas, Alito) versus
4 (Breyer + Ginsburg, Sotomayor, Kagan) 

Walker v. Texas Division, Sons of Confederate Veterans, upheld the state's refusal to allow a Confederate flag design on vanity license plates.
5 (Breyer + Thomas, Ginsburg, Sotomayor, Kagan) versus
4 (Alito + Roberts, Scalia, Kennedy) 

Brumfield v. Cain, ruled that the death penalty defendant was entitled to a mental disability hearing.
5 (Sotomayor + Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Thomas + Roberts, Scalia, Alito) 

Davis v. Ayala, ruled that the death penalty defendant suffered no prejudice when trial judge permitted the prosecution--in the absence of the defense counsel--to offer race-neutral reasons for removing several jurors.
5 (Alito + Roberts, Scalia, Kennedy, Thomas) versus
4 (Sotomayor + Ginsburg, Breyer, Kagan) 

Kingsley v. Hendrickson, ruled that force used by jail officials on a pre-trial detainee must be objectively reasonable.
5 (Breyer + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Los Angeles v. Patel, invalidated a local law that permitted officials to search hotel guest registries without a warrant or the hotel's consent, and unannounced.
5 (Sotomayor +  Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)

Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)

Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)

Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)

Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + Roberts, Kennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)

In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)

And if the foregoing isn't enough, the Court today ordered a halt ( a "stay") of the Texas laws that severely restricted the availability of abortions. Uhhh, by a 5-4 vote: Kennedy + the 4 liberals versus Roberts, Scalia, Thomas, and Alito. ("ORDER IN PENDING CASE,  WHOLE WOMAN’S HEALTH, ET AL. V. COLE, COMM'R, TX DHS.)

A dreadfully partisan court.

Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging)

The immediately preceding post on New York Court Watcher offered an assessment of Judge Sonia Sotomayor's performance at the confirmation hearings. In short, no political bombshells to hurt her chances, but no demonstration that she deserves a seat on the nation's high court either. Substantively abysmal. (See Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings), July 19, 2009.)

The next few posts will consider Sotomayor's testimony on a few important topics about which the Senators questioned her. They will be addressed in no particular order, except as I can read the notes I scribbled during the hearings. We'll deal with one major--perhaps all-encompassing--topic in this post.

Judging
Sotomayor was unwilling or unable to offer anything but a grade school account of what judges do. They only look at the facts and apply the law. They make no law and they make no policy. The legislature does that. The judges simply apply the law and policy already made by the legislature. Or they apply precedents. And precedents are apparently nothing more than the judges' past applications of law and policy pre-determined by the legislature.

Can Sotomayor possibly believe that the role of judges is so simplistic? Can she possibly believe that law and policy are so clear and consistent and dictate one particular result in cases that come before appellate judges? Can she possibly not understand that many cases that come before appellate courts, and virtually all that come before the Supreme Court, have no pre-determined result? That they can legitimately be decided in more than one way? That there are virtually always law and policy and precedents supporting each of the different possible results? That judges, and especially Supreme Court Justices, must pick and choose among the law and policy and precedents? That judges, and especially Supreme Court Justices, choose (usually with disagreements among them) which law and policy and precedents will prevail over the others? That in doing so they are creating new precedents? And that in doing so thay are necessarily making law and policy? (That at the absolute least, this is true for landmark decisions?)

Is it really possible Sotomayor believes anything as simplistic as she claimed? Really possible that she does not understand the reality of judge-made law and policy? There are 2 possibilities. Either she really believes what she was saying, or she does not. It's hard to say which would be worse.

Of course the reality of judges making law is understood by every serious judge and student of the judicial process. Sotomayor's own supposed judicial hero, Benjamin Cardozo (who was the Chief Judge of New York State's high court before his tragically short tenure on the Supreme Court) recognized judge-made law as a given. He then proceeded to deal with the real question--i.e., the implications of that given. Oliver Wendall Holmes, another of America's greatest judicial figures (and Cardozo's predecessor on the Court), had previously done the same. So too have countless other jurists and judicial scholars.

But Sotomayor was insisting--repeatedly, till ad nauseum--the opposite. In doing so, she avoided having to explain the judicial role in terms more sophisticated than 3d grade social studies. (She didn't even demonstrate that she could have.) And she helped to keep public discourse about the judiciary at the lowest pssible level. More than that, she helped to keep the American public--as well, apparently, as many Senators--misled and blind about what judges, especially those on the Supreme Court, actually do.

In the next posts we'll look at some other topics addressed by Sotomayor. E,g., gun rights, "fundamental rights," the Ricci case, affirmative action, the right to choose, and the right to privacy. Most of them can be dealt with more briefly than than "Judging." So we should be able to cover more than one at a time.

Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment)

An anachronistic 1886 decision of the Supreme Court. That's what Judge Sonia Sotomayor relied upon in deciding that the Second Amendment does not apply to the states. That is, that the Constitution does not protect the right to bear arms against any restrictions by state or local governments.

A cursory (2 paragraphs of reasoning), unenlightening, and unsigned opinion. That's how Sotomayor treated, and dismissed, the contention that the states must honor the constitutional right to bear arms. That is, how she treated, and dismissed, a legal claim this year that the Constitution protects the right to bear arms against violations by states and localities--not just by the federal government.

The 1886 decision of the Supreme Court is Presser v. Illinois. The 2009 decision of Sotomayor--and 2 other judges on the panel with her--is Maloney v. Cuomo.

One need not be a firearms aficionado or a 2d Amendment partisan to be troubled by the manner in which Sotomayor dealt with the right to bear arms. Not only in the Maloney case, but in her responses to questions about that case at the Senate Judiciary Committee hearings. Both in Maloney and at the hearings, she insisted that her position was based on settled law. That the 1886 Supreme Court decision in Presser is settled law. So too is a 2005 decision of the 2d Circuit (the federal appeals court on which she has been sitting).

Let's start with that 2005 decision. Bach v. Pataki (decided by a 3 judge panel that did not include Sotomayor) simply restated that 1886 Presser decision. Okay, to be fair, it also cited U.S. v. Cruikshank--an 1875 decision of the Supreme Court that was quoted in Presser for the same antiquated (i.e., long overruled) view of the Constitution.

The unexamined application of those 1886 and 1875 rulings in the 2005 decision by 3 of her colleagues should have been enough to raise questions for Sotomayor. But beyond that, there was this minor development in constitutional law a few years after that 2005 decision. A little Supreme Court case named District of Columbia v. Heller. That certainly should have given more than a little pause about whether her colleagues' 2005 decision--and those 1886 and 1875 decisions of the Supreme Court--represented "settled law."

Heller, of course, was the 2008 decision in which the Supreme Court ruled that the 2d Amendment's right to bear arms is an individual right. Not just one enjoyed by state governments to organize a militia. In reaching that conclusion, the Court went to lengths to explain that the right to bear arms existed even before the Constitution, that it was not even dependent on the 2d Amendment, and that the Founders and Framers viewed the right as a natural and fundamental one to which all free men were entitled. Beyond that, the Court strongly hinted that the 1886 and 1875 decisions had long since lost their validity. (The Heller decision was discussed at the time on the New York Court Watcher. See Supreme Court: Right on the Gun Right, June 27, 2008.)

The specific question about the continued validity of the 1886 and 1875 decisions was not directly before the Court in Heller. So the Court did not explicitly overrule--or reaffirm--them. But, it is impossible to read Heller without seeing that the Court was explicitly raising doubts about those old decisions. That the Court's actual holding in Heller and its reasoning to support that holding cast serious doubts about those old decisions. And that those old decisions were now clearly unsettled law--if that was not already clear.

And yet, in her Maloney decision--decided the year after Heller--and at the hearings, Sotomayor persisted in claiming that those old decisions and her colleagues' 2005 decision relying on them was settled law. That was why her Maloney decision was cursory and unsigned. State governments were free to ignore the constitutional right to bear arms. The law was clear. Despite Heller. And despite what the Supreme Court alluded to in Heller--i.e., what has happened in constitutional law to undermine those old decisions.

Indeed, all that has happened in constitutional law. Even without the 2008 Heller decision, the developments in constitutional law over the past century would alert a 1st year law student--would alert even a college student taking an undergraduate course in constitutional law--that those 1886 and 1875 decisions were extremely questionable at best. Certainly no longer to be considered "settled."

Those old decisions were decided at a time when the Supreme Court was still saying that the rights in the Bill of Rights did not apply to the states. That the Constitution did not protect those rights against violations by state governments. To be sure, the Bill of Rights itself was intended to apply only to the federal government. But with the ratification of the 14th Amendment in 1868, the Constitution explicitly prohibited the states from unduly infringing upon "privileges," "immunities," and "liberty." Unfortunately, in decisions such as the 1886 Presser and 1875 Cruikhank, the Supreme Court largely nullified the 14th Amendment.

According to the Court back then, the 14th Amendment really didn't change anything. Deferring to state sovereignty, the Court repeatedly held that the amendment's explicit guarantees of "privileges" and "immunities" and "liberty"--as well as the "due process"--still didn't protect the rights in the Bill of Rights against state governments. One dissenting Justice in the infamous 5 to 4 decision in the 1873 Slaughterhouse Cases put it bluntly. The Supreme Court had turned the 14th Amendment into a "vile and idle enactment."

In case after case at that time, a majority of the Court held that the guarantees in the 14th Amendment did virtually nothing to restrict the states. Just a few examples. In Maxwell v. Dow (1900), the Court held that the states didn't have to provide jury trials in criminal prosecutions. In Twining v. New Jersey (1908), states were not bound by the right against compelled self-incrimination. In Minor v. Happersett (1874), states were free to decide who could vote and could deny that right to women [notwithstanding the Amendment's "equal protection" guarantee]. And in Plessy v. Ferguson (1896), states were free to discriminate against African-Americans and keep them away from Whites.

Yes, those were the kinds of decisions and that was the climate surrounding the 1886 and 1875 decisions that Sotomayor claims is still settled law. As would be expected for decisions at that time, the Supreme Court held in those cases, Presser and Cruikshank, that the right to bear arms wasn't protected against the states. Well, the Court had been holding that virtually no rights were protected against the states. And it was making absolutely clear that the 14th Amendment didn't do a thing to make the Bill of Rights--or the rights expressed in the Bill of Rights--applicable against the states.

All that, as we all know, has changed.

The Supreme Court eventually took a different view. The 14th Amendment's express protection against the states was recognized as having nationalized or "absorbed" or "incorporated" most of the Bill of Rights. Free speech, press, and religion; right to counsel, to a jury trial, and against compelled self-incrimination; and other rights deemed to be "fundamental" to the American concept of liberty have all been made applicable to the states--and, thus, constitutionally binding upon them.

Beginning in 1937 with the seminal decision in Palko v. Connecticut, written by Justice Benjamin Cardozo (Sotomayor's claimed judicial hero), the Supreme Court has interpreted "liberty" in the 14th Amendment as including virtually every right mentioned in the Bill of Rights. "Implicit in the concept of ordered liberty." Principles "rooted in the traditions and conscience of our people." "Fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." That is how Cardozo construed the "liberty" guaranteed in the 14th Amendment. And that is how the Supreme Court has construed and applied it ever since.

Cardozo's interpretation of "liberty" in the 14th Amendment has prevailed. Indeed, the Supreme Court has since given it even wider application than Cardozo did. And that is the law today. That is what's "settled." That is what the Supreme Court will apply when it decides whether the right to bear arms is protected against the states.

The Court will not be disinterring the jurisprudence of more than a century ago. Not the jurisprudence which denied that the states had any constitutional obligation to honor basic American rights. Not the decisions of that era. Not decisions such as Presser and Cruikshank which Sotomayor relied upon earlier this year, in Maloney, to dismiss the notion that the right to bear arms applied to the states. No, not those decisions of a bygone constitutional era--despite Sotomayor's claims at the hearings that they represent settled law.

Does she really believe that? Or not? And what would be worse?

[Disclosure: Although I became accustomed to firearms in the Army, I am not a fan, let alone an enthusiast. In fact, I strongly support gun regulations.
But I don't believe that the 2d Amendment can honestly be ignored or disparaged. It was quite clearly deemed by the Founders and Framers to be critical to a free society. And when the case arises for the Supreme Court to apply its fundamental rights jurisprudence to the the right to bear arms (and there are cases in the pipeline), it is hard to imagine any decision other than that the right to bear arms is fundamental and is protected by the 14th Amendment against violations by the states.
I may turn out to be mistaken. But at the very least, there are very serious questions about the continued validity of those 1886 and 1875 decisions.
That is why I find Sotomayor's dismissive decision in Maloney and her explanation at the hearings to be so deplorable. Either she really does not understand the problems with those old cases, or she does and simply denied it. Again, what's worse?]
(Previous posts on the New York Court Watcher concerning Judge Sotomayor's performance at the hearings include: Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.

Posts on her record as an appeals court judge include:(See Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (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.)