Sonia Sotomayor

Assessing Justice Sotomayor's First Ten Years on the Supreme Court

The concerns I expressed about her record on property rights when I testified at her 2009 confirmation hearing were justified. But she has compiled an admirable record on several other issues.

|The Volokh Conspiracy |

 

Supreme Court Justice Sonia Sotomayor.

Yesterday marked the tenth anniversary of Justice Sonia Sotomayor's ascension to the Supreme Court. USA Today Supreme Court reporter Richard Wolf has an interesting article summarizing her time on the Court so far:

Sotomayor was President Barack Obama's choice to fill the first Supreme Court seat that became vacant on his watch, and she has not disappointed. Since winning Senate confirmation, 68-31, and being sworn in Aug. 8, 2009, to succeed former associate justice David Souter, she has been a reliable member of the court's liberal wing.

These days, she may be the court's most liberal member. She and Associate Justice Ruth Bader Ginsburg, the grande dame of the court's left flank, agreed in 93% of the court's cases last term. Over the past two terms, as the court moved further to the right, Sotomayor has penned more dissents than any other justice.

She is best known for her opinions on civil rights, privacy rights and criminal justice, including prisoners on death row…

Like many Supreme Court justices, Sotomayor has not made much effort to outline and defend a comprehensive judicial philosophy. So her record must be judged primarily based on her opinions on specific issue areas.

In the process of writing the article, Wolf interviewed some of those who testified at Sotomayor's confirmation hearing in 2009, including myself. My testimony was highly critical of her record on constitutional property rights issues (see also here, for answers to follow-up questions by some members of the Senate Judiciary Committee), though I did also note that she had written a praiseworthy decision in an asset forfeiture case.

I told Wolf that I believe my concerns about Sotomayor's property rights jurisprudence have been amply justified by her record on the Court. Since joining the Court, Sotomayor has voted for the government in every non-unanimous takings decision heard by the justices. That includes some where she has diverged from the views of other liberal justices, most notably the 2015 Horne raisin takings case, where she was the sole justice to conclude that the seizure of large quantities of raisins by the federal government (for purposes of propping up a government-sponsored cartel) is not a taking.

That record is not a surprise, given that her decision in the 2006 Didden case (the main focus of my testimony) was the most extreme modern eminent domain "public use" decision I had seen in many years of studying this subject. She ruled that the use of eminent domain to back what was almost literally extortion for the benefit of a private developer, qualifies as a "public use" permissible under the Fifth Amendment. For reasons I explained in my testimony, this outcome was not required by the Supreme Court's earlier decision in Kelo v. City of New London (2005), which—although egregious in other respects—still noted  that the "pretextual" use of eminent domain for the purpose of benefiting a private party is unconstitutional. It's hard to find a more blatantly pretextual taking than the one in Didden.

Wolf quotes a number of commentators who praise Sotomayor as a justice sensitive to the ways in which the Court's decisions negatively affect ordinary people, when they allow abuses of government power to go unchecked. There is some justification for that praise, based on other aspects of her record. But Sotomayor seems unaware or indifferent to the ways in which judicial abdication on takings issues inflicts great harm on the poor, the disadvantaged, and the politically weak.

I also have reservations about Sotomayor's jurisprudence in a number of other areas, such as federalism (where she is often overly deferential to federal government power, including in some cases where other liberal justices have not been), deference to administrative agencies (ditto), and racial preferences. A notable example of the latter was her dissent in Schuette v. Coalition to Defend Affirmative Action (2014), where Sotomayor was one of only two justices to conclude that a Michigan referendum barring the use of racial preferences in state university admissions is unconstitutional. The point is not just that Sotomayor concluded that such racial preferences are constitutional (a very defensible, though still problematic, position), but that she took the far more extreme position that it is unconstitutional to use the referendum process to repeal them.

This dissent is also flawed in crudely treating affirmative action as a simple lash of interest between the white majority and racial minorities, despite the fact that in reality it disadvantages some minority groups (most notably Asian-Americans), while potentially benefiting others (particularly African-Americans and Hispanics). Ironically, Sotomayor's mistake here was partly a failure to consider the full extent of America's diversity. In fairness, other justices were guilty of less severe forms of the same error. As I pointed out at the time, Asian-Americans were not mentioned even once in any of the five opinions in the case (totaling over 100 pages), despite the fact that their situation was highly relevant to the questions considered by the Court.

But, in my discussion with Wolf, I also emphasized that Sotomayor deserves great credit for her excellent work on a number of other issues. I specifically praised her outstanding dissent in the travel ban case, where I said "she nailed it exactly right." It isn't just the best of the four opinions in that tragically misguided ruling; it is—in my view -one of the best opinions by any justice over the last decade. Sotomayor brilliantly explains why the majority was wrong to minimize the significance of Trump's bigoted motivations for issuing the travel ban, and why the Court was repeating some of the most egregious errors Korematsu v. United States, even as it belatedly repudiated that awful precedent. In 2009, I did not expect either that a case like the  travel was likely to come up in the foreseeable future, or that Sotomayor would write the best opinion on the issue.

As Wolf describes in some detail, Sotomayor has also compiled an excellent record on many civil liberties and criminal justice issues, where she has formed something of a cross-ideological alliance with Trump appointee Neil Gorsuch. This alliance is often described as "unlikely." But it is not so surprising in light these two jurists' records on the lower courts, and the fact that criminal justice issues often now divide judges in ways that cut across left-right ideological divisions rather than align with them. In 2009, many commentators (myself included) did not give enough weight to this aspect of Sotomayor's jurisprudence.

Wolf  mentions Sotomayor's many speeches and public statements, which are more extensive than those of any other current justice. On balance, I think this is a good thing, in so far as it gives the legal community and others a  better understanding of her views. At the same time, I am not a fan of some of the positions she has taken in these speeches, most notably her advocacy of "forced labor" (Sotomayor's term, not mine), as a tool for increasing the availability of legal services. I share her concerns about the need to reduce the cost of legal services for the poor, but believe that there are vastly better and more just ways to achieve that end.

One key lesson of Sotomayor's tenure on the Court, so far, is that we should try to assess nominee's qualifications based on a wide range of issues, not just a few that happen to be prominent at the time. In an age when Supreme Court justices serve for decades, it is highly likely that some of the most important cases they consider will be ones different from the "hot button" issues at the time they were appointed. Few in 2009 foresaw that overreaching immigration policies would be an important part of the Court's docket during Sotomayor's tenure on it. Similarly, few in 1987 expected that cases involving the rights of gays and lesbians would turn out to be a major part of the legacy of Justice Anthony Kennedy.

Barring unforeseen health problems, Justice Sotomayor is likely to be on the Court for many more years. Her most important legacy could turn out be a case—or a series of cases—that hasn't happened yet, perhaps on an issue whose future significance few now foresee.

 

 

Advertisement

NEXT: Hong Kong Protesters Use Umbrellas, Lasers, and Respirators to Evade Surveillance and Tear Gas

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Ricci
    Shuette
    Nuff said

    1. Ricci was particularly bad because of the procedural shenanigans that she and the other members of the panel engaged in to try to evade review.

  2. Unfortunate typo at the beginning of a paragraph in the middle of the post:

    “This dissent is also flawed in crudely treating affirmative action as a simple lash [missing a “c”] of interest between the white majority and racial minorities”

  3. “forced labor”

    So there’s still one person in favor of slavery. Why am I not surprised.

    1. Government artificially increases the price of legal services through an occupational license cartel. That hurts the poor the most. So claw back some of that benefit with forced labor. That fits the general vicious cycle of expanding government.

      1. Yeah, and the “forced labor” also increases the price legal services, which hurts the poor.

        1. And so the cycle continues, twirling and twirling towards free.. I mean, further tyranny.

          1. If only there were more lawyers in politics, so some of the reforms Ilya suggests could be enacted.

  4. Ilya,
    Sotomayor’s dissent in IRAP was a crock of shit. She all but ignored Mandel which she dismissed in a footnote while purporting to distinguish that it was different because Mandel was an “individual” thereby creating the previously unknown one free First Amendment discriminatory act doctrine. Absolutely no citations to Verdugo-Uriquidez in regard to how constitutional rights apply to foreigners on foreign soil not in the custody of the United States.

    The Court got IRAP wrong, but Sotomayor’s dissent was classic Brennan bullshit: try to count to five, just make sure the result is right, don’t worry about how inconsistent it is with what the Court has previously ruled, if we do it enough the lower courts will get the gist of where things should land reasoning be damned.

  5. 10 years of the wise Latina….

  6. Are welfare benefits property? That old buzzard Rehnquist thought so. He would be on the Sotomayor wing these days.

  7. It certainly ought to be worth mentioning that she’s also horrible on the civil liberty civil libertarians so often forget: The right to keep and bear arms.

    1. Justice Sotomayor has exhibited a reasonable interpretation of an respect for the Second Amendment. She is not a gun nut, which aggravates gun nuts.

      1. Sotomayor, in McDonald, voted to overrule Heller. Reasonable interpretation indeed!

        1. A quick excerpt from her confirmation testimony:

          “LEAHY: Good. Let me (ph) talk to you about another decision that’s been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it’s an
          individual right.
          LEAHY: I’ve owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting. Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right? Is that correct?

          SOTOMAYOR: Yes, sir.

          SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court
          recognized in Heller. ”

          Then she signed onto an opinion in McDonald demanding Heller be overturned. She could have dissented from the outcome of that case and not been a liar, if she’d just disputed incorporation, but that’s not what she did.

          Liar, liar, pants on fire.

          1. Lies, in a confirmation hearing? Shocking!

            1. Yes, I know. Everybody present knew she was lying, but she had to tell the lie. But everyone knows no Democratic President would EVER nominate somebody to the Supreme court who wasn’t horrific on the 2nd amendment.

              1. Democrat Party. Don’t give them the satisfaction of addressing their evil party correctly.

                1. “Don’t give them the satisfaction of addressing their evil party correctly.”

                  The satisfaction of stomping conservatives’ ugly preferences in the culture war will need to suffice.

                  1. You haven’t done that. You’ve just replaced Americans with “Americans.”

              2. no Democratic President would EVER nominate somebody to the Supreme court who wasn’t horrific on the 2nd amendment.

                Well, no one who agrees with you about it, anyway.

          2. Well, unsurprisingly, this turns out to be a bit of a distortion by Brett.

            Breyer’s dissent in McDonald, which she joined, deals almost entirely with the question of incorporation, and argues that the Amendment is not incorporated against the states.

            And what did Sotomayor say in her hearing about that?

            Referring to Heller:

            The court expressly — Justice Scalia in a footnote — identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn’t apply
            to the states in its regulation of its relationship with its citizens.
            In Supreme Court province (ph), the right is not fundamental. It’s a legal term. It’s not talking about the importance of the right in a legal term. It’s talking about is that right incorporated against the states.

            So the characterization of her as a liar is not very accurate. I should have known better than to take your “facts” at face value.

            1. Yeah, I’m looking at Breyer’s dissent, in which Sotomayor joined, and it does indeed attack the Heller decision that Sotomayor in her confirmation testimony claimed to accept.

              ” If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?” “…stare decisis interests are at their lowest with respect to recent and erroneous constitutional decisions that create unworkable legal regimes…”

              She had the opportunity to write her own dissent, that didn’t attack Heller. Instead she signed onto a dissent claiming it was wrongly decided.

              Yeah, she was lying at her confirmation history, and yeah, everybody knew it at the time.

              1. Second amendment is not incorporated, and therefore it is not a fundamental right.

                Second amendment to the constitution. Mentions itself it is a right. Not a right.

                Hooooookay….

  8. Somin praises Sotamayor when he agrees, and disparages her when he disagrees.

    1. Don’t we all do that with politicians, judges, news anchors, friends and families?

      1. We do, but then, we don’t get, or deserve, much attention while doing so.

        1. We might, were We members of the Supreme Court.

          I’m using the `Royal We` here, and We are amused.

    2. Wouldn’t doing the opposite imply that he thought he was wrong? And who thinks that they’re wrong, and then doesn’t change their mind?

      1. One can respect those who disagree.

        1. Within limits, yes. Let’s not pretend the limits aren’t there.

          1. No, don’t you realize? We are obligated to respect liberals, because they’re good people who disagree. But they aren’t obligated to respect us, because we’re supporting a racist, misogynist, cruel, heartless man who wants to bring about a new Nazi regime. See the Soul Cycle “protests.”

  9. RE: “Barring unforeseen health problems, Justice Sotomayor is likely to be on the Court for many more years.”

    Not that many, unfortunately. A while back, I looked up the statistics and did the math. Based on her age and on the average life-span of a female with good health-coverage who has had type-1 diabetes since early childhood (seven years old), her odds of living past 2024 (which is, going by historical trends, when the Democrats will likely win the White House) are almost exactly 50/50. Of course, she might have to retire earlier.

    1. We can only hope.

    2. Are you looking at total life expectancy under those circumstances, or life expectancy for somebody who has already attained her present age? Makes a big difference.

      1. Exactly. By the average lifespan age, half have already died. So as you approach it, you are in the remaining portion who will on average live longer than that average age.

        1. We’ve already established, for instance, that she’s good at keeping it under control. That she doesn’t binge on sweets and forget to take her insulin. Most of that reduction in life expectancy for type 1 diabetes is due to the people who aren’t good about following the treatment plan.

          1. And one who can afford top notchb treatment? She’s probably using RBGs doctor/witchcraft, which means she’ll love to be 113.

  10. ” Since winning Senate confirmation, 68-31, and being sworn in Aug. 8, 2009, to succeed former associate justice David Souter, she has been a reliable member of the court’s liberal wing. ” Ilya, you have managed to prove that Judges vote with their set of prejudices rather than, on matters of Law. We need more strict-constructionists on the Bench instead of Liberal Justices.

    1. Or we could just stop with the racist appointments that put someone one the bench because they are a particular color. That would be a good start.

      1. The meme is it’s vitally important. Yet it’s a cover story for race as synonym with political beliefs, as Clarence Thomas showed.

        Correctly, from their point of view, they opposed him because of his politics. So if race carried no weight when up against politics, does it really carry any weight if the POC expresses favored politics?

    2. Indeed.

      Wolf quotes a number of commentators who praise Sotomayor as a justice sensitive to the ways in which the Court’s decisions negatively affect ordinary people, when they allow abuses of government power to go unchecked.

      is an awfully polite way of saying she decides the question of policy first, before maybe glancing at the actual law if she has a spare moment.

      Good profile for a member of Congress; shouldn’t have been let anywhere near a courtroom.

      1. It’s a bad profile for a member of Congress, too: They actually ARE supposed to refrain from passing unconstitutional laws. Not just pass whatever they feel like, and rely on the Court to stop the unconstitutional ones.

        Which the Court mostly doesn’t do except in the most egregious cases, anyway.

  11. It+s probably a sign of our times that you have to be thankful for any attempt to acknowledge that there is merit in a person you disagree with on some very important issues. However, from an academic it shouldn’t surprise us ─ but it still does. There is another reason it shouldn’t: libertarians tend to cross across the divide. I admit that Neil Gorsuch has been able to pleasantly surprise me on some matters: “One key lesson of Sotomayor’s tenure on the Court, so far, is that we should try to assess nominee’s qualifications based on a wide range of issues, not just a few that happen to be prominent at the time.”

  12. Her recent McDonough majority opinion completely ignored a long line of precedent, including 2017’s Manuel v. City of Joliet.

    Anytime you get Kagan, Gorsuch, and Thomas disseting together, you’ve probably done something fundamentally wrong.

    1. Unfortunately, any time you get Kagan, Gorsuch, and Thomas dissenting together, it means the majority of the Court have done something fundamentally wrong… Because they’re dissenting, after all.

      1. I think it would be hard to read my comment as saying anything different. (Apologies for misspelling ‘dissenting’ tho)

  13. Her concurring opinion in U.S. v. Jones, 565 U.S. 400, 413 (2012), was a breath of fresh air. I find most of her opinions misguided, but she understood/understands the dangers of warrantless searches in the digital age, and their impact on the First Amendment.

Please to post comments

Comments are closed.