The Volokh Conspiracy
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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.
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 clash 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 ban 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 of 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.
