Will Sotomayor Be Better Than Souter on Civil Liberties?

In the July 1 New Republic, Jeffrey Rosen examines Supreme Court nominee Sonia Sotomayor's dissenting opinions and finds evidence of "a judge who can be both crusading and open-minded" and "who will likely move the Supreme Court marginally to the left on civil liberties issues." Some of the cases he cites are familiar from newspaper coverage of Sotomayor's nomination. In 2002, for instance, she disagreed with 2nd Circuit colleagues who upheld the firing of a New York City police officer who had mailed racist and anti-Semitic material to charitable groups that solicited donations from him. Sotomayor concluded that such private, off-the-job speech was protected by the First Amendment, which to my mind (and Rosen's) counts in her favor. (My colleague Radley Balko sees things differently, arguing that police departments have a legitimate interest in keeping badges and guns away from overt bigots.) Rosen concedes that Sotomayor's First Amendment credentials are tarnished by her support for a 2008 decision that upheld school administrators' retaliation against a student who had called them "douchebags" on her blog.

Regarding the Fourth Amendment, Rosen highlights a 2000 dissent in which Sotomayor said the Constitution does not allow police to search an apartment for drugs without a warrant simply because the residents have voluntarily opened the door for a food delivery. In that case, Sotomayor mocked the majority's description of the search as consensual, especially the part where the officers pointed guns at the suspects and "asked" them to step outside. Another Fourth Amendment dissent makes me wish Sotomayor had been on the Supreme Court for the oral arguments in Safford Unified School District v. Redding, the case involving a strip search of a 13-year-old girl by public school officials who were looking for ibuprofen. In a 2004 case where the 2nd Circuit upheld strip searches of two girls at a Connecticut juvenile detention facility, Sotomayor emphasized the "embarrassing and humiliating" nature of the searches, in which "the officials inspected the girls' naked bodies front to back, and had them lift their their breasts and spread out folds of fat." She said the majority gave insufficient attention to "the privacy interests of emotionally troubled children" who "have been victims of abuse or neglect, and may be more vulnerable mentally and emotionally than other youths their age." Rosen concludes that "Sotomayor's Fourth Amendment dissents suggest that she will be a more consistent search-and-seizure civil libertarian than Souter."

Then again, Rosen cites an estimate that, "of Sotomayor's 67 majority opinions involving criminal matters, 81 percent are pro-government and only 18 percent are pro-defendant." And whatever skepticism of government she has shown in Fourth Amendment and First Amendment cases, it inexplicably does not extend to Takings Clause cases. I say "inexplicably" even though that's the typical pattern among left-liberals because it never ceases to amaze me that people who purportedly empathize with the little guy and resist the capture of government by big business can approve eminent domain abuses as outrageous as the one Sotomayor and her colleagues upheld in the 2006 case Didden v. Village of Port Chester (which Radley Balko and Damon Root discuss here and here). The prospect that Sotomayor "may be less suspicious of 'regulation by litigation' than Souter or any of the other justices on the Roberts Court," though also troubling, makes more sense given her concern for "economic and social justice" (which Rosen welcomes).

Sotomayor is not only a mixed bag from a libertarian point of view; according to Rosen, she is all over the map methodologically. After six years as a trial judge and 11 years on the 2nd Circuit, Rosen writes, "Sotomayor still hasn't settled on a consistent judicial philosophy….She samples from different judicial philosophies in different cases. Sometimes Sotomayor sounds like a textualist in the Scalia style, and sometimes she sounds as enthusiastic as Justices Ginsburg and Breyer in her devotion to international law and the living constitution." This inconsistency is not exactly encouraging, but even if Sotomayor chooses sides by flipping a coin she might still turn out better (or at least no worse) than David Souter, and Obama easily could have chosen someone more consistently bad.