First Monday in Sotomayor

Her “Empathy” Could Make a Difference this Term . . . for the Right

As the first Monday in October officially commences another U.S. Supreme Court term, eyes are likely to remain focused on the Court’s newest member, Justice Sonia Sotomayor. Both conservatives and liberals have a lot riding on her performance, her voting record, and her (perceived) influence on the Court’s decisions.

For conservatives, Sotomayor’s confirmation by the Senate represented losing a war but winning an important first battle in painting President Obama, via his nominee, as a dangerous ideological extremist.

Few took aim at her actual record on the bench, save that last year the Supreme Court overturned one of her more recent Appellate decisions. Instead, they focused on her rhetoric in a few speeches, some from years earlier, to tar her as a dangerous radical; one who would make decisions based empathy and sentiment for defendants in place of the letter of the law and long-standing precedent. Sotomayor even stands accused of reverse racism, favoring people of color over whites in any/all situations.

Despite the fact that she was replacing Justice Souter, who usually voted with the Court’s liberal contingent anyway, the conservative argument ran that she nonetheless represented an extreme shift left in that contingent; one so aggressive and undisciplined as to tear down anything and anyone in her pursuit of progressive social reform.

For liberals, Sotomayor’s confirmation was a desperately needed break in momentum, after the two Justices appointed by former President Bush cemented the dominance of the Court’s conservative faction, both by moving it even slightly further to the right and, most importantly, ensuring its presence for many years to come. Sotomayor represented new liberal blood in counterpoint to Roberts and Alito.

Moreover, the arrival of the Court’s first Hispanic Justice, as well as only its third woman, was as much an outward signal of the change candidate Obama had promised to bring to Washington as any internal ideological shift. While most liberals understood from the start that shift was likely to be minor or even indiscernible, the far left still held hopes that Sotomayor might strike a blow for some of their most cherished causes.

My guess is that both sides are likely to be disappointed. The right will not get their fire-breathing socialist dragon and the left will fail to see a new champion arise, complete with a gleaming sword of populist justice.

A number of cases – such as Free Enterprise Fund v. Public Company Accounting Oversight Board, Jones v. Harris Associates, and Citizens United v. Federal Election Commission – all center around the ability of the federal government to regulate various aspects of corporate behavior. These might seem tailor-made for an Obama nominee in a post-Wall Street meltdown era. Yet Sotomayor’s potential increased aggressiveness over Souter in these causes is unlikely to make much difference unless other Justices on the Court have become significantly more suspicious of business – a dubious development.

Salazar v. Buono is the objection of Frank Buono to a white cross, erected nearly seventy years ago as a memorial to World War I dead, sitting in California’s Mojave National Preserve. When a federal district judge ruled it Unconstitutional, Congress attempted to skirt the issue by transferring the acre of land on which it sat to a private organization, the Veterans of Foreign War. Despite the seeming hotbed of the Separations Clause in this case, the real issues to be decided are more mundane, such as whether Buono had standing to object and whether the land transfer was legal.

McDonald v. City of Chicago questions whether the Second Amendment’s protection of an individual right to bear arms, which the Court ruled that federal laws may not abridge just last year, also applies to state and local laws. Regardless of how vehement a proponent Sotomayor may be for gun control, she and the Court’s other liberals have a very difficult time breaking the same five vote alliance that decided District of Columbia v. Heller.

The Court’s docket could cause Sototmayor to have an impact because of the number of criminal rights cases it contains. Sullivan v. Florida and Graham v. Florida both argue that sentencing juvenile offenders to life in prison without the possibility of parole violates the Eighth Amendment’s ban on cruel and unusual punishment.

United States v. Comstock challenges the practice of keeping sex offenders locked up in prison even after completing their sentences on the ground that they remain “sexually dangerous.”

Finally, Briscoe v. Virginia tests last year’s decision in the case of Melendez-Diaz v. Massachusetts that prosecutors may not rely on crime lab reports in criminal trials unless the analysts who prepared the reports are also made available to testify.

Because of her past as a federal prosecutor and trial judge, Sotomayor has often leaned more conservatively in favoring law enforcement than other areas of jurisprudence. It is wholly conceivable she could vote with conservatives and against her fellow liberals in any or all of these cases.

The same is true for Bilski v. Doll, a patent dispute case addressing whether companies can patent intangible business methods. Sotomayor has demonstrated consideration in the past for intellectual property rights.

The bottom line is that in cases where Sototmayor is most likely to vote as Souter might have, her vote is likely to have little impact on changing the majority ruling. However, in several cases, the empathetic factors that conservatives so feared in her decision-making process, might cause Sotomayor to change several five-to-four vote squeakers into more authoritative six-to-three decisions. This means her most likely impact (if any) on the Court, at least in her first year, will be to move it more to the right than it would have gone with Souter still in place.

If this is truly the outcome, once experts have analyzed all the key decisions and tallied the votes in each, it will be interesting to see what conservatives now think of their ersatz dragon and how liberals still feel about their nascent champion.