History > 2009 > USA > Supreme Court (I)
That States Can Press Bank Cases
June 30, 2009
The New York Times
By JOHN SCHWARTZ
The Supreme Court paved the way on Monday for states to enforce fair-lending
laws and other consumer protection measures against the nation’s biggest banks,
striking down a rule that limited such powers to federal banking regulators.
The court concluded that rules issued by federal banking regulators under the
National Bank Act — a law passed in 1864 — could not block, or pre-empt, efforts
by the states to enforce their laws.
The case began with letters sent in 2005 by the New York attorney general at the
time, Eliot Spitzer, to several national banks, including Citigroup, JPMorgan
Chase and Wells Fargo, inquiring about their lending practices to minority
The letters referred to “troubling” disparities that suggested black and
Hispanic borrowers had been charged disproportionately higher interest rates on
mortgages compared with those for whites.
The letters asked for the information “in lieu of subpoena” but strongly
suggested that subpoenas might follow if the requests were not fulfilled.
A banking trade group and the Office of the Comptroller of the Currency brought
suit to block Mr. Spitzer’s request, contending that the National Bank Act and
rules issued by the Bush administration in 2004 gave that kind of law
enforcement authority to the comptroller and prohibited such efforts by the
states. A federal district court ruled against the states, and the United States
Court of Appeals for the Second Circuit affirmed the lower court’s decision.
Writing for a 5-to-4 majority, Justice Antonin Scalia concluded that the
attorney general had not been engaged in the broad “visitorial powers” reserved
by the federal government, in which the government acts like a supervisor with
free access to bank records on demand. The court, he wrote, has always
understood that visitorial powers are “quite separate” from the power to enforce
the law, and the attorney general was acting in the role of
“sovereign-as-law-enforcer” in seeking the information.
Normally, Justice Scalia wrote, the court would defer to an agency’s
interpretation of the law when the terms in dispute are ambiguous. But in this
case, which turned on such terms as “visitorial powers,” he stated that even
though the term was “somewhat ambiguous,” the court could discern “the outer
limits” of the term, “even through the clouded lens of history.” The meaning
that could be wrestled from the phrase, Justice Scalia wrote, did not include
restrictions on “ordinary enforcement of the law” by the states.
The decision brought together an unusual coalition. Justice Scalia, one of the
court’s most conservative members, was joined by the court’s more liberal wing
of John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G.
A decision concurring in part and dissenting in part was written by Justice
Clarence Thomas and was joined by Chief Justice John G. Roberts Jr. and Justices
Anthony M. Kennedy and Samuel A. Alito Jr., a group that did not share Justice
Scalia’s view through the clouded lens of history. “The statutory term
‘visitorial powers’ is susceptible to more than one meaning,” Justice Thomas
wrote, “and the agency’s construction is reasonable” and thus should be deferred
In a statement, New York’s current attorney general, Andrew M. Cuomo, called the
decision “a huge win for consumers across the nation.” In a reference to the
nation’s economic crisis, Mr. Cuomo added, “the court has recognized that fair
lending and consumer protection — the cornerstones of a sound economy — require
the cooperative efforts of both the states and the federal government.”
Seth Galanter, a lawyer in Washington who wrote a brief on behalf of former
comptrollers, said that the worst case envisioned by federal regulators had not
come to pass. While the decision does not block the attorneys general from
enforcing state laws, he said, it does require judicial approval to gain access
to records. “Our concern was really the establishment of 50 state supervisory
regimes, where states could come in and look at the books whenever they wanted
to,” he said.
The federal regulators had argued that their informal approach worked quietly
with banks to address issues like fair lending in a “prophylactic way” that
John F. Cooney, a lawyer in Washington who specializes in bank regulation and a
former deputy general counsel for litigation and regulatory affairs at the
Office of Management and Budget, said that the decision upholds the theme of
federalism that has run through several important cases of this just-ended
Supreme Court term.
He added, however, that the banking decision would now require action by the
legislative branch. “People are going to go to Congress and say, ‘You need to
give us a functioning principle’ to define the boundaries of state and federal
law,” he said. “The ultimate court of appeal will be Congress.”
James E. Tierney, director of the national state attorneys general program at
Columbia Law School, said that a line-drawing exercise by Congress was unlikely
to put state enforcers on the sidelines again.
In the absence of tough regulation of the banking industry by the federal
government, he said, state attorneys general have stepped up to provide consumer
protection and to fight discrimination. He called the case “a stinging defeat
for the large banks and federal regulators who have worked for years to stop
states from enforcing state consumer protection and antidiscrimination laws.”
Senator Patrick J. Leahy, Democrat of Vermont, agreed, calling the decision “a
check against the former Bush administration’s attempt to prohibit state law
from protecting consumers.”
Justices Rule That
States Can Press Bank Cases, NYT, 30.6.2009,
Ruling Offers Little Guidance on Fair Hiring
June 30, 2009
The New York Times
By STEVEN GREENHOUSE
In ruling for a group of white firefighters in New Haven on Monday, the
Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary
for many cities and other employers: what they should do when an employment test
yields results that overwhelmingly favor whites.
But many legal experts said that instead of setting forth clear new rules, the
court’s decision left things as muddled as ever for the nation’s employers — and
seemed to ensure much more litigation over the explosive issue of employment
“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program
director with the National League of Cities. “This is going to be good for
The 5-to-4 ruling applies largely to public-sector hiring and to civil service
exams, but could also affect private employers that use tests or other screening
methods. The court said that if an employer used a hiring or promotion test, it
generally had to accept the test’s results — unless the employer had strong
evidence the test was flawed and improperly favored a particular group.
With the court’s ruling making it harder for cities and other employers to throw
out tests they conclude are unfair, employers are expected to work harder to
make sure their written tests — indeed their entire selection process — are
“The ruling gives employers less flexibility to change the selection process
once it’s established,” said Katharine Parker, a lawyer with Proskauer Rose who
is chairwoman of the Labor and Employment Committee of the New York City Bar
Association. “As a result, employers will want to try to establish bulletproof
Some may abandon written tests altogether.
To avoid charges of discrimination, many cities have already been moving away
from such tests in favor of other methods of hiring and promoting employees in
places like fire and police departments. They say written tests are often not
the best way to determine who can perform best.
In New Haven, city officials, having concluded that their written test was
flawed, said there was another, trusted method to select firefighting
lieutenants and captains that posed less of a disadvantage to blacks and
Hispanics. That method relies largely on assessment centers where applicants are
evaluated in simulated real-life situations to see how they would handle them.
Supporters of the idea say assessment centers do far better than written exams
in measuring leadership and communications skills and an applicant’s ability to
Bridgeport, Conn., uses that approach, and its ranks of fire lieutenants and
captains are, unlike New Haven’s, largely proportionate to the city’s black and
“I think we will see greater use of assessment centers,” said Matthew Colangelo,
director of the economic justice program of the NAACP Legal Defense and
Educational Fund. “New Haven is a bit of an outlier in using an antiquated
method of measuring leadership. Most cities have long since realized that a
pencil and paper test, which largely measures memorization, is not the best way
to identify who will be the best leader.”
Both the Supreme Court majority and the dissenters made clear that employers
should continue voluntary efforts to comply with fair employment laws and to
ensure that their tests neither discriminate nor ask questions that are
irrelevant to job qualifications. And many city officials said Monday that they
already did just that.
In Little Rock, Ark., the city attorney, Thomas M. Carpenter, predicted that the
Supreme Court ruling would not have a major impact in his city. “Local
governments take great care to make sure these tests are race-neutral and
gender-neutral,” Mr. Carpenter said. “How you do on the test is how you do on
Melinda B. Livingston, the state examiner for Louisiana’s fire and police civil
service system, said 6,000 people were tested each year for hiring and promotion
in those fields. “If you do everything you can to manage adverse impact up
front, this should not be a problem,” Ms. Livingston said.
Often, she said, there are differences among races in the results. She said
those differences might result from differences in educational opportunities,
upbringing or other factors.
“Whatever causes this difference, we focus ultimately on what the needs of the
job are,” Ms. Livingston said.
Charles Fletcher, the city attorney in Tampa, Fla., said the ruling put his city
in a difficult spot.
“If we do get results that suggest there is a bias in the test, how we handle
those would be much more difficult,” Mr. Fletcher said. “You’ve kind of got the
local government between a rock and a hard place when there’s an issue with a
In New Haven, supporters of the white firefighters applauded the ruling, while
minority firefighters did not hide their dismay.
Matthew Marcarelli, a white lieutenant who qualified as a captain on the test,
said there had been lingering racial tension at the department. “Now that the
highest court in the land has ruled,” Mr. Marcarelli said, “hopefully that will
put a lot of this to bed.”
Gary Tinney, the president of the Firebirds, the black firefighters’
association, said black firefighters would sue if the old promotion test was
certified. Mr. Tinney said the ruling “definitely will have an adverse effect
not only on promotion, but hiring policies.”
Mayor John DeStefano Jr. said at a news conference that the court’s rulings had
for some time been moving away from reasonable efforts to remedy discrimination.
“I have no doubt that the firefighters who brought the lawsuit genuinely felt
that they had done nothing wrong, and that they were egregiously wronged,” Mr.
DeStefano said. “I also have no doubt that there is another group of
firefighters today who feel that the rules are constantly stacked against them.
And that when they finally do start to get ahead, the rules get changed.”
Several legal experts said it might be harder for cities and other employers to
determine when they had a “strong basis of evidence” for discarding a test, the
standard the court imposed on Monday, compared with the prior standard of having
a “good-faith basis.”
All this could mean more litigation.
“It certainly raises the potential for delays in filling key public safety
positions because of the potential for endless court review of hiring
decisions,” Mr. Etzkorn said.
Contributing reporting were Robbie Brown in Atlanta; A. G. Sulzberger and
Lynnley Browning in New Haven; Karen Ann Cullotta in Chicago; and Carmen Gentile
Ruling Offers Little
Guidance on Fair Hiring, NYT, 30.6.2009,
Justices Rule Lab Analysts Must Testify on Results
June 26, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Crime laboratory reports may not be used against criminal
defendants at trial unless the analysts responsible for creating them give
testimony and subject themselves to cross-examination, the Supreme Court ruled
Thursday in a 5-to-4 decision.
The ruling was an extension of a 2004 decision that breathed new life into the
Sixth Amendment’s confrontation clause, which gives a criminal defendant the
right “to be confronted with the witnesses against him.”
Four dissenting justices said that scientific evidence should be treated
differently than, say, statements from witnesses to a crime. They warned that
the decision would subject the nation’s criminal justice system to “a crushing
burden” and that it means “guilty defendants will go free, on the most technical
The two sides differed sharply about the practical consequences of requiring
testimony from crime laboratory analysts. Justice Anthony M. Kennedy, writing
for the four dissenters, said Philadelphia’s 18 drug analysts will now each be
required to testify in more than 69 trials next year, and Cleveland’s six drug
analysts in 117 trials each.
Noting that 500 employees of the Federal Bureau of Investigation laboratory in
Quantico, Va., conduct more than a million scientific tests each year, Justice
Kennedy wrote, “The court’s decision means that before any of those million
tests reaches a jury, at least one of the laboratory’s analysts must board a
plane, find his or her way to an unfamiliar courthouse and sit there waiting to
read aloud notes made months ago.”
Justice Antonin Scalia, writing for the majority, scoffed at those
In any event, he added, the court is not entitled to ignore even an unwise
constitutional command for reasons of convenience.
“The confrontation clause may make the prosecution of criminals more burdensome,
but that is equally true of the right to trial by jury and the privilege against
self-incrimination,” Justice Scalia wrote.
“The sky will not fall after today’s decision,” he added.
But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the
executive director of the National District Attorneys Association, said of the
“To now require that criminalists in offices and labs that are already burdened
and in states where budgets are already being cut back,” Mr. Burns said, “to
travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind
of reeling from this decision.”
Mr. Burns said complying with the ruling would be particularly tough in large
rural states with a single crime laboratory and in old cases where the analyst
has died or moved away.
The decision came in the wake of a wave of scandals at crime laboratories that
included hundreds of tainted cases in Michigan, Texas and West Virginia. William
C. Thompson, a professor of criminology at the University of California, Irvine,
said those scandals proved that live testimony from analysts was needed to
explore potential shortcomings in laboratory reports.
“The person can be interrogated about the process, about the meaning of the
document,” Professor Thompson said. “The lab report itself cannot be
interrogated to establish the strengths and limitations of the analysis.”
In February, the National Academy of Sciences issued a sweeping critique of the
nation’s crime labs. It concluded, for instance, that forensic scientists for
law enforcement agencies “sometimes face pressure to sacrifice appropriate
methodology for the sake of expediency.”
Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out
not only the fraudulent analyst, but the incompetent one as well.” He added that
the Constitution would require allowing defendants to confront witnesses even if
“all analysts always possessed the scientific acumen of Mme. Curie and the
veracity of Mother Teresa.”
The case arose from the conviction of Luis E. Melendez-Diaz on cocaine
trafficking charges in Massachusetts. Part of the evidence against him was a
laboratory report stating that bags of white powder said to have belonged to him
contained cocaine. Prosecutors submitted the report with only an analyst’s
Jeffrey L. Fisher, a law professor at Stanford who represented Mr.
Melendez-Diaz, said perhaps a third of all states follow procedures that comply
with Thursday’s decision. What that will mean as a practical matter remains to
be seen. Criminal defense lawyers may still stipulate that crime lab reports are
accurate, fearing that live testimony will only underscore their clients’ guilt.
Others may insist on testimony in the hope that the analyst will be unavailable.
Still others will now be able to prove that an analyst’s conclusion was mistaken
“The defense bar today gains the formidable power to require the government to
transport the analyst to the courtroom at the time of trial,” Justice Kennedy
wrote. The decision, Melendez-Diaz v. Massachusetts, No. 07-591, featured some
unusual alliances. The two justices most closely associated with a commitment to
following the original meaning of the Constitution, Justices Scalia and Clarence
Thomas, were joined by three members of the court’s liberal wing, Justices John
Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
In addition to Justice Kennedy, the dissenters included two members of the
court’s conservative wing, Chief Justice John G. Roberts Jr. and Justice Samuel
A. Alito Jr., and the remaining liberal, Justice Stephen G. Breyer.
Justice Kennedy said the majority had upended 90 years of settled law from six
federal appeals courts and courts in 35 states.
“The court’s holding,” Justice Kennedy wrote, “is a windfall to defendants, one
that is unjustified by a demonstrated deficiency in trials, any well-understood
historical requirement, or any established constitutional precedent.”
Justices Rule Lab
Analysts Must Testify on Results, 26.6.2009,
Supreme Court Says Strip Search of Child Illegal
June 25, 2009
Filed at 10:46 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
WASHINGTON (AP) -- The Supreme Court ruled Thursday that a school's strip
search of an Arizona teenage girl accused of having prescription-strength
ibuprofen was illegal.
The court ruled 8-1 on Thursday that school officials violated the law with
their search of Savana Redding in the rural eastern Arizona town of Safford.
Redding, who now attends college, was 13 when officials at Safford Middle School
ordered her to remove her clothes and shake out her underwear because they were
looking for pills -- the equivalent of two Advils. The district bans
prescription and over-the-counter drugs and the school was acting on a tip from
"What was missing from the suspected facts that pointed to Savana was any
indication of danger to the students from the power of the drugs or their
quantity, and any reason to suppose that Savana was carrying pills in her
underwear," Justice David Souter wrote in the majority opinion. "We think that
the combination of these deficiencies was fatal to finding the search
But the court ruled the officials cannot be held liable in a lawsuit for the
search. Different judges around the nation have come to different conclusions
about immunity for school officials in strip searches, which leads the Supreme
Court to "counsel doubt that we were sufficiently clear in the prior statement
of law," Souter said.
"We think these differences of opinion from our own are substantial enough to
require immunity for the school officials in this case," Souter said.
The justices also said the lower courts would have to determine whether the
Safford United School District No. 1 could be held liable.
A schoolmate had accused Redding, then an eighth-grade student, of giving her
The school's vice principal, Kerry Wilson, took Redding to his office to search
her backpack. When nothing was found, Redding was taken to a nurse's office
where she says she was ordered to take off her shirt and pants. Redding said
they then told her to move her bra to the side and to stretch her underwear
waistband, exposing her breasts and pelvic area. No pills were found.
A federal magistrate dismissed a suit by Redding and her mother, April. An
appeals panel agreed that the search didn't violate her rights. But last July, a
full panel of the 9th U.S. Circuit Court of Appeals found the search was "an
invasion of constitutional rights" and that Wilson could be found personally
Justices John Paul Stevens and Ruth Bader Ginsburg dissented from the portion of
the ruling saying that Wilson could not be held financially liable.
"Wilson's treatment of Redding was abusive and it was not reasonable for him to
believe that the law permitted it," Ginsburg said.
The case is Safford Unified School District v. April Redding, 08-479.
Supreme Court Says Strip
Search of Child Illegal, NYT, 25.6.2009,
In ’98, Hints From Sotomayor on Death Penalty
June 25, 2009
The New York Times
By BENJAMIN WEISER
As a drug kingpin and his bodyguard, both black, faced the first death
penalty trial in Manhattan since the days of the Rosenbergs, their lawyers
argued that the practice of capital punishment was racist.
“We’re doing what the death penalty has always done historically, which is
target minority people,” one of the lawyers said in 1998 as he asked a Federal
District Court judge to declare the penalty unconstitutional.
That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who
as a young lawyer had leveled much the same attack on capital punishment. And as
she listened to the arguments that day, she acknowledged there were many
unresolved “tensions” surrounding the death penalty.
But she flatly told the lawyers she had no power to resolve them. “I don’t as a
judge,” she said. “They are not up to me. Ultimately, they are up to Congress
and the Supreme Court.”
Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her
nomination has sparked questions about her early advocacy and whether that might
flavor her performance as a justice.
The 1998 case, the only death penalty matter she appears to have handled on the
federal bench, offers some answers. Transcripts provide a revealing look at the
judge, acting as an official arbiter on an issue she once addressed strongly —
and weighing the lives of two men.
The case record shows she was curious enough about the defense arguments that
she ordered prosecutors to produce data on the race of defendants considered for
the death penalty. But it also shows she was tough on defense lawyers,
repeatedly challenging their claims that minority defendants were
disproportionately singled out.
She even rejected the same kind of statistical argument against capital
punishment that she had made years earlier as a lawyer, saying it was not
sufficient to prove discrimination.
“We gave her enough ammunition that she could have struck down the death
penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it
would have stood up in the U.S. Supreme Court, who knows? But we gave her enough
room to do it — had she wanted to reach out and do it — and she didn’t.”
In the end, Judge Sotomayor never ruled on the merits of the death penalty, even
though her remarks made clear that she was unlikely to find it unconstitutional.
Some two years into the case, she was elevated to the federal appellate bench in
New York, and the case was handed to another judge, who declined to strike down
the law. Both defendants pleaded guilty and avoided execution.
But Judge Sotomayor conducted three lively pretrial hearings that explored the
death penalty. In more than 100 pages of transcripts, she emerges as deeply
engaged, vocal and demanding, scrutinizing both sides and sometimes floating
At one point, pressed by defense lawyers to resolve the death penalty’s
inequities, she advised them to be careful what they wished for.
“As my law clerk said to me the other day, what is the remedy? Should we just
have more people sentenced to capital punishment? That’s as effective a remedy
as having fewer people sentenced to capital punishment if we find that we need
to remedy some overall societal inequity.”
Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about
the death penalty during her long career, which included about five years as an
assistant district attorney in Manhattan. But conservatives who oppose her
nomination have seized on a 1981 internal memo signed by her and two other
directors of the Puerto Rican Legal Defense and Education Fund recommending that
the organization oppose restoration of the death penalty in New York State.
The memo said capital punishment was “associated with evident racism in our
society” and cited statistics to show that “the number of minorities and the
poor executed or awaiting execution is out of proportion to their numbers in the
Seventeen years later, she heard a similar argument on behalf of two defendants
charged with multiple murders: Clarence Heatley, who led a multimillion-dollar
crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a
former New York City housing police officer.
In 1997, Mary Jo White, the United States attorney in Manhattan, received
authorization from Attorney General Janet Reno to seek the death penalty against
both men. Congress had reinstituted the federal death penalty in recent years,
and Ms. White’s office had considered a dozen other cases before settling on Mr.
Heatley’s and Mr. Cuff’s.
Before the men could be tried, however, Judge Sotomayor had to consider their
lawyers’ challenge to the law. They presented data showing that since 1988, the
federal government had authorized 119 capital cases, with 79 percent involving
minority defendants. Of the 16 men who had been sentenced to death, 13 were
members of minorities.
But the judge agreed with prosecutors that the numbers alone did not prove
discrimination in this case. The high percentage of minority defendants, she
said, “tells me nothing about the pool from which that number comes from.” She
said the defense had to offer more — “some actual proof of discrimination
besides statistical evidence, because it can be manipulated.”
The defense had, indeed, tried to get more evidence, asking the judge to order
the government to produce information on federal defendants across the country
who had been considered for capital punishment, and on how each decision had
Judge Sotomayor balked. “The only way that we can end up with your getting
anything that would be admissible,” she said, “is if we literally redid all of
the deliberative processes in every single case that was eligible for the death
Ultimately, she agreed to order data on the racial and ethnic composition of the
pool of defendants.
“I would like to see the numbers myself,” she said. “I do agree with you that
the death population in the federal system is so disparately different from the
general population that one look more should be done, at least an initial
The judge also seemed open to the idea of allowing the defense, during a
possible future sentencing hearing, to tell the jury that other murderers had
been spared the death penalty.
She said: “You can very well see a potential argument by the defense that says,
If Joe Blow, who kills his wife, 10 children, his mother, and didn’t get the
death penalty, why should my client? Why shouldn’t society put to death
murderers of more heinous crimes? These are drug dealers killing drug dealers.”
Judge Sotomayor was not shy about asserting a personal opinion. She allowed that
in the past five years, she had noticed “a sea change” in Manhattan federal
prosecutors’ handling of the death penalty — an apparent reference to an
increase in cases considered for capital punishment and new policies on how such
decisions were made. But she dismissed the defense’s claim that racial bias was
“It may be based on politics,” she said, “since it’s the only explanation that
could justify the sea change. But I have no basis to believe, in what you
presented me with or otherwise, that it’s based on race.”
Whatever her own feelings on capital punishment, the judge showed a willingness
to understand and apply the death penalty law, even if the result could be two
executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much
legal leeway on one point, she cautioned that his approach could lead to a
reversal of any verdict.
“Remember two things,” she told him. “A conviction is important. Surviving
conviction is more important.”
She also had a pointed word for the defense: Do not expect the Supreme Court to
abolish capital punishment anytime soon.
Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not
be a death penalty. He asserted that the Supreme Court almost struck down
capital punishment in a 1987 case involving racial disparities. The author of
the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his
“It was that close to being no death penalty,” Mr. Ruhnke said.
Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to
overturn the penalty than the court had been in 1987.
“Unfortunately for your client, regardless of what the makeup of the
decision-making will be 50 years from now, in the short run,” she said, the
death penalty “will still be here.”
In ’98, Hints From
Sotomayor on Death Penalty, NYT, 25.6.2009,
Free-Speech Case for a Debt-Ridden Age
June 23, 2009
The New York Times
By ADAM LIPTAK
The great Supreme Court free-speech cases of the 20th century arose from the
suppression of political dissent in wartime and the struggle for civil rights in
the South. These days, the court’s First Amendment docket is thinner and odder.
A recent sample: Minor celebrities swearing. Dog fight videos. A monument to the
Seven Aphorisms of the Summum religion. A banner reading “Bong Hits 4 Jesus.”
But the Supreme Court did just agree to hear a free-speech case that captures
the tenor of our times. It concerns bankruptcy.
One of the plaintiffs in the case is Robert J. Milavetz, a 73-year-old lawyer
from Minnesota. In the 1960s and 1970s, he represented conscientious objectors
and people accused of violating obscenity laws. The new free-speech
battleground, he says, is whether the government can gag lawyers seeking to help
their clients arrange their financial affairs.
In 2005, Congress enacted a law that seems to bar lawyers from advising their
clients to take on more debt if they are considering bankruptcy.
“Any lawyer with a First Amendment background would immediately recognize the
First Amendment problems in this statute,” Mr. Milavetz said.
The law was meant to combat what it called bankruptcy abuses. It is certainly
possible to abuse the bankruptcy system by piling on debt right before filing in
the hope that you will not have to repay it. But ethics rules already forbid
lawyers from advising their clients to break the law.
At the same time, not all new debt in the face of bankruptcy is abusive. It may
be perfectly legal and prudent, for instance, to refinance a home mortgage to
pay down credit card debt. It may make sense to buy a car on credit to make sure
you can get to work — so you can pay back your creditors. But the law seems to
forbid lawyers from suggesting or even discussing such things.
Joseph R. Prochaska, a bankruptcy lawyer in Nashville who represents creditors,
said a client might get plausible advice from, say, a brother-in-law or from
Suze Orman on CNBC about refinancing a loan.
“You go to your lawyer for confirmation,” Mr. Prochaska continued. “As a lawyer,
what do you say to that — if I told you to do that, I’d be breaking the law.”
Experts in First Amendment law and legal ethics said the law, at least if read
broadly, is deeply flawed.
“To say that a lawyer can’t advise a client to take on legal debt is clearly
unconstitutional,” said Erwin Chemerinsky, the dean of the new law school at the
University of California, Irvine.
Stephen Gillers, who teaches legal ethics at New York University, agreed.
“Congress has no legitimate interest in denying people knowledge of their lawful
alternatives,” Professor Gillers said.
In its brief urging the Supreme Court to hear the case, the government did not
defend the broader and more natural reading of the law, the one that would
forbid even lawful advice. Instead, it said the law contained “a term of art”
with “a specialized meaning” that should allow for a more limited reading, one
that applies only to abusive situations.
The law forbids advising someone “to incur more debt in contemplation of such
person filing” for bankruptcy. The term of art, the government says, is the
three-word phrase “in contemplation of.” You probably have to be a very good
lawyer to make that phrase mean what the government says it means: “actions
taken with the intent to abuse the protections of the bankruptcy system.”
In fairness, the government’s interpretation won support from a dissenting
appeals court judge in the case the Supreme Court agreed to hear, from the
United States Court of Appeals for the Eighth Circuit, in St. Louis, and from a
unanimous three-judge panel of the Fifth Circuit, in New Orleans.
To avoid holding a law unconstitutional, the Fifth Circuit said, it is sometimes
a good idea to give a “restrictive meaning” to “what appear to be plain words.”
That approach has a name: the doctrine of constitutional avoidance.
Mr. Milavetz’s firm challenged the law, asking that it be struck down in all
possible applications. Its briefs discuss hypothetical problems. The law
prohibits advice about co-signing on a child’s student loan, one brief said, or
borrowing to pay for credit counseling.
But the Supreme Court has not welcomed these kinds of sweeping challenges in
recent cases, preferring more focused “as applied” cases that take issue with
particular applications of laws.
The law also requires bankruptcy lawyers covered by it to publish disclosures
when they advertise. The law says they must use this statement or something
“substantially similar”: “We are a debt relief agency. We help people file for
bankruptcy relief under the Bankruptcy Code.”
Mr. Milavetz said the language was aimed to stifle speech. “I feel the term
‘debt relief agency’ is pejorative,” he said. “It deters lawyers from
Other lawyers welcome the requirement.
“Most consumer bankruptcy lawyers like to call themselves a ‘debt relief
agency,’ ” Mr. Prochaska said. “They have buttons that say ‘Federal Debt Relief
Agent.’ It’s a marketing tool.”
There are traces of history in every era’s First Amendment cases. These days, it
seems, the great open question is what may be said in the face of looming
Free-Speech Case for a
Debt-Ridden Age, NYT, 23.6.2009,
Justices Let Stand a Central Provision of Voting Rights Act
June 23, 2009
The New York Times
By DAVID STOUT
WASHINGTON — The Supreme Court on Monday let stand a central provision of the
Voting Rights Act of 1965, declaring that there was no need at the moment to
decide whether that provision was still constitutional in light of the
fundamental changes that have swept across the South in recent decades.
In an 8-to-1 ruling in perhaps the most important case of its term, the court
said that passing judgment on an act of Congress is “the gravest and most
delicate duty that this court is called upon to perform,” and that it need not
undertake that momentous duty at this time. But the court stated pointedly that
“the act also differentiates between the states in ways that may no longer be
At stake was Section 5 of the act, which requires a number of states and many
local governments, mostly in the South, to seek federal permission before
changing their voting procedures. That section was reauthorized by Congress for
25 years in 2006, even though the lawmakers relied on practices that have all
but disappeared and voting data from decades ago.
“The historic accomplishments of the Voting Rights Act are undeniable,” Chief
Justice John G. Roberts Jr. wrote for the court. “When it was first passed,
unconstitutional discrimination was rampant and the ‘registration of voting-age
whites ran roughly 50 percentage points or more ahead’ of black registration in
many covered states,” he noted, quoting from an earlier ruling involving the
Voting Rights Act.
But while not striking down Section 5, the court ruled that a small Texas water
district whose challenge to Section 5 led to Monday’s ruling — and by
implication some other political units as well — should have an easier time
applying for and obtaining exemption, or getting a “bail out,” from Section 5
provisions. So Monday’s ruling was a victory for the Northwest Austin Municipal
Utility District Number One in its suit against the United States.
More important, the court noted: “Since 1982, only 17 jurisdictions — out of the
more than 12,000 covered political subdivisions — have successfully bailed out
of the act. It is unlikely that Congress intended the provision to have such
limited effect.” Exactly which political units will be able to “bail out” of
Section 5 will probably require detailed examination.
Only Justice Clarence Thomas dissented Monday, stating that he thought it
inappropriate to sidestep the constitutional question in Northwest Austin
Municipal District Number One v. Holder, No. 08-322, and that he thinks Section
5 is no longer constitutional.
When the case was argued on April 22, the questions posed by several justices
hinted at a willingness to find Section 5 unconstitutional. But Chief Justice
Roberts used language that every member of the court, including Justice Thomas
in part, was able to embrace. Referring to the Voting Rights Act in its
entirety, the chief justice wrote, “In part due to the success of that
legislation, we are now a very different nation.”
Justices Let Stand a
Central Provision of Voting Rights Act, NYT, 23.6.2009,
Justices Reject Inmate Right to DNA Tests
June 19, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Prisoners have no constitutional right to DNA testing that might
prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4 decision.
The court divided along familiar ideological lines, with the majority
emphasizing that 46 states already have laws that allow at least some prisoners
to gain access to DNA evidence.
“To suddenly constitutionalize this area,” Chief Justice John G. Roberts Jr.
wrote for the majority, “would short-circuit what looks to be a prompt and
considered legislative response.”
The case before the court concerned Alaska, which has no DNA testing law.
Prosecutors there have conceded that such testing could categorically establish
the guilt or innocence of William G. Osborne, who was convicted in 1994 of
kidnapping and sexually assaulting a prostitute in Anchorage.
In a dissent, Justice John Paul Stevens said the Constitution’s due process
clause required allowing Mr. Osborne to have access to DNA evidence in his case.
“For reasons the state has been unable or unwilling to articulate,” Justice
Stevens wrote, “it refuses to allow Osborne to test the evidence at his own
expense and to thereby ascertain the truth once and for all.”
Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing
“both to exonerate the wrongly convicted and to identify the guilty.” Such
testing has played a role in 240 exonerations, according to the Innocence
Project at Cardozo Law School, which represents Mr. Osborne. In 103 of those
cases, the testing also identified the actual perpetrator.
Peter Neufeld, a director of the project, said Thursday’s decision would have
“It’s unquestionable that some people in some states who are factually innocent
will not get DNA testing and will languish in prison,” Mr. Neufeld said. “Some
of them will die in prison.”
Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have
laws in place specifically dealing with postconviction DNA testing, and Alabama
recently enacted one limited to death row inmates that will become effective
Many states that do allow postconviction testing impose conditions on who may
seek it. Prosecutors often fight hard to deny access to DNA evidence even in
states that nominally allow it, saying the prisoner in question had not met the
Some laws, for instance, do not allow prisoners who have confessed to seek DNA
evidence, though false confessions have been common among exonerated inmates.
Other states allow testing only if it was unavailable at the time of trial.
Mr. Neufeld said the logic of Thursday’s decision might allow constitutional
challenges to some of those laws.
In the case from Alaska, District Attorney’s Office v. Osborne, No. 08-6, Mr.
Osborne sought to test biological evidence on a condom found at the crime scene,
a snowbank near Anchorage International Airport. The victim was raped, beaten
with an ax handle, shot in the head and left for dead. But the bullet only
grazed her head, and she survived.
Rudimentary DNA testing on the condom in preparation for trial excluded two
other suspects and included Mr. Osborne among those who might have committed the
crime. The kind of testing used at the time, Chief Justice Roberts wrote,
“generally cannot narrow the perpetrator down to less than 5 percent of the
Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing
that was more discriminating. The lawyer said she feared that the results might
further incriminate her client. After his conviction, Mr. Osborne sued state
officials in federal court seeking access to the DNA evidence for a third kind
of yet-more-discriminating testing.
There was other significant evidence of Mr. Osborne’s guilt, and he confessed to
the Alaska Board of Parole, which released him after 14 years. He later said he
had lied to the parole board in the hope of quicker release. Mr. Osborne has
since been convicted of a home invasion.
Last year, the United States Court of Appeals for the Ninth Circuit, in San
Francisco, ordered prosecutors in Alaska to turn over the DNA evidence, saying
the most sophisticated form of testing had not been available at the time of the
trial, that Mr. Osborne would bear its cost and that the results could provide a
conclusive answer about his guilt or innocence.
Justice Samuel A. Alito Jr., in a part of his concurrence joined by Justices
Anthony M. Kennedy and Clarence Thomas, was skeptical of all of the appeals
Allowing Mr. Osborne to forgo testing at trial and then request it from prison,
Justice Alito wrote, “would allow prisoners to play games with the criminal
“After conviction,” Justice Alito added, “with nothing to lose, the defendant
could demand DNA testing in the hope that some happy accident — for example,
degradation or contamination of the evidence — would provide the basis for
seeking postconviction relief.”
Justice Alito acknowledged that the testing Mr. Osborne now seeks was more
advanced than the kind his lawyer failed to pursue.
“But his counsel did not decline” the less discriminating testing “because she
thought it was not good enough,” Justice Alito wrote. “She declined because she
thought it was too good.”
States would incur significant costs, Justice Alito added, were prisoners “given
a never-before-recognized constitutional right to rummage through the state’s
genetic-evidence locker.” And even the most sophisticated DNA testing, he said,
“often fails to provide absolute proof of anything.”
Although it has no DNA testing law, Alaska does have general procedures through
which prisoners can try to gain access to evidence that might prove their
innocence. The justices disagreed about how effective those procedures have
Chief Justice Roberts, whose majority opinion was joined by Justices Kennedy,
Thomas, Alito and Antonin Scalia, wrote that he saw “nothing inadequate” about
But Justice Stevens said no prisoner had ever obtained DNA evidence for testing
in Alaska. He said Mr. Osborne “was rebuffed at every turn” by the state,
creating “grave doubts about the adequacy of the procedural protections” in
Justices Ruth Bader Ginsburg and Stephen G. Breyer joined all of Justice
Stevens’s opinion and Justice David H. Souter part of it.
Justice Souter issued a dissent saying that officials in Alaska had
“demonstrated a combination of inattentiveness and intransigence” that add up to
“procedural unfairness that violates the due process clause.”
But Chief Justice Roberts concluded that the issue of when to allow DNA testing
was best handled by the states.
“The question,” he wrote, “ is whether further change will primarily be made by
legislative revision and judicial interpretation of the existing system, or
whether the federal judiciary must leap ahead — revising (or even discarding)
the system by creating a new constitutional right and taking over responsibility
for refining it.”
Justices Reject Inmate
Right to DNA Tests, NYT, 19.6.2009,
As Court Clears Path, Chrysler Is Set to Exit Bankruptcy
June 10, 2009
The New York Times
By MICHAEL J. de la MERCED
Chrysler appeared poised to emerge from bankruptcy by early Wednesday after
the United States Supreme Court declined on Tuesday to hear a challenge by three
Indiana state funds and several consumer groups to the sale of most of its
assets to Fiat.
The refusal by the Supreme Court to revisit the matter, after two lower courts
approved the sale, removes the uncertainty posed by a decision by Justice Ruth
Bader Ginsburg on Monday to halt the deal temporarily pending further review.
The decision by the Supreme Court, disclosed in a two-page order, made it clear
that the justices were not ruling on the merits of the challenge by the Indiana
funds, which had protested the government’s treatment of Chrysler’s secured
Instead, according to the order, the Indiana funds “have not carried the burden”
of proving that the Supreme Court needed to intervene. “We are gratified that
not a single court that reviewed this matter, including the U.S. Supreme, found
any fault whatsoever with the handling of this matter by either Chrysler or the
U.S. government,” the Treasury Department said in a statement.
“The Supreme Court really looks at big-picture issues with long-term
dimensions,” said Evan D. Flaschen, the chairman of the financial restructuring
group at Bracewell & Giuliani. “It’s clear they said, ‘we’re not commenting on
the merits of Chrysler, and that this isn’t the type of case where we need to
step in to clarify the law.’ ”
A Chrysler spokesman said in a statement that “we’re very pleased with the
court’s decision and look forward to closing the transaction very shortly.”
In a statement, Richard Mourdock, Indiana’s treasurer, said he was
“disappointed” by Tuesday’s order adding, “The future ramifications of the
court’s decision on the capital markets remain to be seen.”
In spite of the delay by the Supreme Court, Chrysler’s trip through bankruptcy
has been astonishingly quick, taking a little over a month. The Obama
administration had promised the reorganization would be efficient.
Even as Chrysler and Fiat awaited the Supreme Court’s decision, their advisers
prepared the paperwork to close the deal as soon as possible. They plan to
complete the transaction by 9 a.m. Wednesday, when the government wires money to
finance the sale, according to people briefed on the matter.
Under the Fiat deal, Chrysler will cut its labor costs and debt levels, as well
as gain a partner skilled in making and selling small, fuel-efficient cars
around the world. Under the government-backed plan, the carmaker would emerge
from bankruptcy with a union retiree trust owning 55 percent, Fiat owning a 20
percent share that could eventually grow to 35 percent, and the United States
and Canadian governments holding minority stakes.
Now Chrysler must contend with a brutal market place, with Americans largely
shunning new cars. It also faces a potentially formidable foe: G.M., itself
trying to slim down through a government-sponsored reorganization.
Chrysler won an additional concession on Tuesday, when a federal judge approved
its request to terminate 789 dealer franchises immediately, a move the company
said would significantly cut costs.
The decision, by Judge Arthur J. Gonzalez of the United States Bankruptcy Court
in Lower Manhattan, overruled objections by scores of dealers.
Throughout its bankruptcy proceedings, Chrysler argued that it needed to close
its deal with Fiat as quickly as possible. Lawyers for the company argued that
it was burning through more than $500 million a week, as its plants sat idle and
its suppliers needed payments to stay afloat.
The Indiana funds represent teachers and police officers and hold $42.5 million
of Chrysler’s $6.9 billion in secured debt.
The funds have argued that they are receiving less compensation for their
holdings — 29 cents on the dollar — than unsecured creditors like the United
Automobile Workers, upsetting bankruptcy law. They have also argued that the
government overstepped the bounds of a federal bailout by giving Chrysler money
meant for banks.
Micheline Maynard and Nick Bunkley contributed reporting.
As Court Clears Path,
Chrysler Is Set to Exit Bankruptcy, NYT, 10.6.2009,
June 9, 2009
The New York Times
The right to a fair hearing before an impartial judge, untainted by money or
special interests, is at the heart of the nation’s justice system and the rule
of law. That right is more secure following a 5-to-4 ruling on Monday by the
United States Supreme Court.
The case involved some egregious ethical myopia on the part of Justice Brent
Benjamin of the West Virginia Supreme Court. Justice Benjamin, who is now the
state’s chief justice, twice cast the deciding vote to throw out a $50 million
verdict against Massey Energy, one of the country’s biggest coal companies. He
sat in judgment on the case even though Massey’s chief executive, Don
Blankenship, spent an extraordinary $3 million to help Justice Benjamin get
elected to the state’s top court.
In Monday’s decision, the majority correctly found that Justice Benjamin’s
failure to recuse himself from a case involving his major campaign supporter —
which John Grisham has cited as an inspiration for one of his legal thrillers —
amounted to a Constitutional violation.
“Not every campaign contribution by a litigant or attorney creates a probability
of bias that requires a judge’s recusal, but this is an exceptional case,” wrote
Justice Anthony Kennedy in the majority opinion, which was joined by Justices
John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Justice Kennedy said that no “quid pro quo” connection has been established
between Mr. Blankenship’s campaign spending, which far surpassed those of other
donors in the judicial elections, and Justice Benjamin’s position in the
lawsuit. Nevertheless, the “serious, objective risk of actual bias” required
Justice Benjamin to recuse himself, and his failure to do so endangered the
plaintiff’s due process rights under the Fourteenth Amendment, Justice Kennedy
In a dissent, Chief Justice John Roberts said he was concerned that the
majority’s ruling will lead to an increase in allegations that judges are
biased. We believe that risk is exaggerated. More important, this ruling comes
at a moment when judicial neutrality and the appearance of neutrality is under a
severe threat from big money state judicial campaigns and the special interest
money that fuels them.
The majority’s recognition of the threat posed by outsize contributions amounts
to a crucial statement that judges and justice are not for sale.
Indeed, the only truly alarming thing about Monday’s decision was that it was
not unanimous. The case drew an unusual array of friend-of-court briefs from
across the political spectrum, and such an extreme case about an ethical matter
that should transcend ideology should have united all nine justices.
Chief Justice Roberts is fond of likening a judge’s role to that of a baseball
umpire. It is hard to imagine that professional baseball or its fans would trust
the fairness of an umpire who accepted $3 million from one of the teams.
Honest Justice, NYT,
Justices Tell Judges Not to Rule on Major Backers
June 9, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Elected judges must disqualify themselves from cases involving
people who spent exceptionally large sums to put them on the bench, the Supreme
Court ruled on Monday in a 5-to-4 decision.
The decision, the first to say the Constitution’s due process clause has a role
to play in policing the role of money in judicial elections, ordered the chief
justice of the West Virginia Supreme Court to recuse himself from a $50 million
case against a coal company whose chief executive had spent $3 million to elect
Thirty-nine states, including New York, elect at least some of their judges, and
election campaigns, particularly for state supreme courts, have in recent years
grown increasingly expensive and nasty. In the last decade, spending on
elections for state high courts has reached $200 million, according to Justice
at Stake, a group that tracks campaign spending. Elected judges routinely accept
contributions from lawyers and litigants who appear before them, and they seldom
disqualify themselves for cases involving donors.
Justice Anthony M. Kennedy, writing for the majority in a decision that split
along familiar ideological lines, said the Constitution required
disqualification when an interested party’s spending had a “disproportionate
influence” in a case that was “pending or imminent.”
Monday’s decision concerned an extreme case, and it announced a vague and
general standard that will be refined and applied in the lower courts. The
justices in the majority said they did not intend “unnecessary interference with
But the four dissenting justices predicted that the decision would generate a
flood of groundless recusal motions and undermine confidence in the judiciary.
The practice of electing judges is all but unknown in the rest of the world.
Federal judges, including the justices of the United States Supreme Court, are
Much of the American legal establishment had urged the court to rule that the
Constitution required elected judges to disqualify themselves from at least
those cases in which interested parties had spent large sums to elect them. Such
groups welcomed Monday’s decision with something approaching jubilation.
“The court’s decision is appropriately narrow but is nonetheless a huge victory
for one of the most basic aspects of the rule of law: the right to a fair
hearing,” said James Sample, a lawyer with the Brennan Center for Justice at New
York University School of Law.
But groups opposing campaign regulations on First Amendment grounds said
Monday’s decision created an unworkable standard.
“The court has given no guidance on how judges should interpret potential
biases, so this ruling will have a chilling effect on citizens engaging in
independent speech,” Bradley A. Smith, the chairman of the Center for
Competitive Politics, said in a statement.
In the West Virginia case, Justice Kennedy wrote, there was “a serious,
objective risk of actual bias.” Chief Justice Brent D. Benjamin, the beneficiary
of the coal executive’s spending, twice joined the majority in 3-to-2 decisions
throwing out the $50 million jury verdict against the company, Massey Energy.
In a series of decisions rejecting disqualification motions, Justice Benjamin
said there was no objective reason to suggest he could not rule fairly in the
Justice Kennedy said he did not doubt Justice Benjamin’s sincerity. “We do not
question his subjective findings of impartiality and propriety,” Justice Kennedy
wrote of the state court’s chief justice in Monday’s decision, Caperton v. A. T.
Massey Coal Company, No. 08-22. “Nor do we determine whether there was actual
The plaintiffs in the fraud case, several small mining companies, won the $50
million verdict in 2002, persuading a jury that they had been driven out of
business by fraud committed by Massey. That company’s chief executive, Don L.
Blankenship, spent about $3 million in 2004 to defeat an incumbent justice,
Warren R. McGraw, a Democrat, and to elect his opponent, Mr. Benjamin, a
Republican who is now the court’s chief justice.
Mr. Blankenship contributed only $1,000, the statutory maximum, directly to Mr.
Benjamin’s campaign. Most of the rest of his spending was on slashing television
advertisements opposing Justice McGraw.
The sums involved, Justice Kennedy wrote, “were more than the total amount spent
by all other Benjamin supporters and three times the amount spent by Benjamin’s
But it was hard to say how much the Blankenship money mattered. Mr. Benjamin won
the election by a seven-point margin, with 53 percent of the vote. He was
endorsed by every major state newspaper but one. His opponent, Justice McGraw,
gave a widely derided speech that probably contributed to his defeat.
Justice Kennedy said none of that mattered. “Whether Blankenship’s campaign
contributions were a necessary and sufficient cause of Benjamin’s victory is not
the proper inquiry,” he wrote.
Justice Kennedy, writing for himself and Justices John Paul Stevens, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer, repeatedly said the West
Virginia case was “extraordinary” and “extreme.”
He added that ordinary state judicial ethics rules — rather than the
Constitution — would govern most cases concerning money spent in judicial
But the dissenting justices predicted that the decision would generate
groundless litigation and undermine confidence in the judiciary.
“It is an old cliché,” Chief Justice John G. Roberts Jr. wrote in a dissent,
“but sometimes the cure is worse than the disease.”
“The end result,” the chief justice wrote, “will do far more to erode public
confidence in judicial impartiality than an isolated failure to recuse in a
Chief Justice Roberts, writing for himself and Justices Antonin Scalia, Clarence
Thomas and Samuel A. Alito Jr., said that “the standard the majority articulates
— ‘probability of bias’ — fails to provide clear, workable guidance for future
He followed this observation with a list of 40 numbered questions that “courts
will now have to determine.” Among them: How much money is too much money? Must
the judge cast the deciding vote? Do contributions from trade associations or
interest groups count?
“Today’s opinion,” Chief Justice Roberts wrote, “requires state and federal
judges simultaneously to act as political scientists (why did candidate X win
the election?), economists (was the financial support disproportionate?) and
psychologists (is there likely to be a debt of gratitude?).”
Justice Scalia, in a separate dissent, said Monday’s decision illustrated a
larger jurisprudential problem.
“The court today continues its quixotic quest to right all wrongs and repair all
imperfections through the Constitution,” Justice Scalia wrote.
“Should judges sometimes recuse themselves even when the clear commands of our
prior due process law do not require it?” he asked. “Undoubtedly. The relevant
question, however, is whether we do more good than harm by seeking to correct
this imperfection through expansion of our constitutional mandate in a manner
ungoverned by any discernible rule. The answer is obvious.”
Justices Tell Judges Not
to Rule on Major Backers, NYT, 9.6.2009,
An Ivy-Covered Path to the Supreme Court
June 9, 2009
The New York Times
By JOHN SCHWARTZ
President Obama may have broken with history by nominating a Latina to the
Supreme Court, but in another respect he followed the path of almost every
president in modern times who has successfully placed a justice: he chose a
nominee groomed in an Ivy League university.
If confirmed, Judge Sonia Sotomayor, who attended Princeton University and Yale
Law School, would sit alongside seven other Ivy League graduates on the court.
Only Justice John Paul Stevens provides a measure of non-Ivy diversity, having
graduated from the University of Chicago and the Northwestern University School
In the history of the court, half of the 110 justices were undergraduates,
graduate students or law students in the Ivy League; since 1950, the percentage
is 70. From the beginning of the 20th century, every president who has seated a
justice has picked at least one Ivy graduate. Four of the six justices on
President Obama’s short list studied at Ivy League institutions, either as
undergraduates or law students.
Whatever a nominee’s origins might be, does attending the same institutions
shape them and their views, even subtly? Critics suggest that elite universities
shave off the differences in backgrounds and contribute to a kind of high-level
“There is both a funneling and homogenizing effect from these schools,” said G.
William Domhoff, a professor of psychology and sociology at the University of
California, Santa Cruz, and the author of “Who Rules America?”
The effect, Professor Domhoff said, “plays out in terms of social networks,
cultural/social capital, and a feeling of being part of the in-group.” It is one
of subtle conditioning — what Sam Rayburn, the former House speaker, meant when
he famously said, “If you want to get along, go along.”
Even those who might not agree with Professor Domhoff’s political critique would
like to see more educational variety on the Supreme Court. Limiting the universe
of nominees largely to Ivy League graduates “is not good for the court or the
country,” said Linda L. Addison, the partner in charge of the New York office of
Fulbright & Jaworski. “Educational diversity would strengthen the court, as have
racial, ethnic, gender and religious diversity.”
Ms. Addison, who has served on the University of Texas Law School Foundation and
is a graduate of the school, acknowledged that Judge Sotomayor’s credentials and
qualifications were impressive. But, she added, “In the future, I also would
love to see a nominee from a first-rate public law school.”
Beyond the high quality of the Ivy League schools, of course, there are
important reasons presidents tend to choose their graduates. One is the public
guarantee that they have selected a certified high achiever.
“Perceptions of qualifications really matter in this game,” said Lee Epstein, a
law professor at Northwestern who maintains a database of the justices’
characteristics. In choosing an Ivy Leaguer, Professor Epstein said, a president
might think: “I don’t have to think too much. I don’t have to dig too deeply
about whether they’re smart or not, whether they are well trained.”
The lack of a top-tier law degree can become a basis for attacking a nominee.
When President George W. Bush nominated Harriet E. Miers to succeed Justice
Sandra Day O’Connor, one of the points hammered by her conservative opponents
was that she had attended the Dedman School of Law at Southern Methodist
A president who attended a top university might gravitate toward those with a
similar education. Stanley Aronowitz, a professor of sociology at the Graduate
Center at the City University of New York, said the selection of Judge Sotomayor
by a president who graduated from Columbia University and Harvard Law was an
example of “people wanting to appoint themselves.”
Professor Aronowitz, who has written extensively on questions of power, higher
education and class, jokingly said, “What I think he means by ‘diversity’ is
Yale, Harvard, Princeton and Columbia.”
Defenders of such appointments say the notion of a homogenous set of graduates
from elite universities is an overblown myth. William G. Bowen, a former
president of Princeton, said the cookie-cutter accusation missed the role of a
“They come out as very different human beings, even though they came through a
similar process,” Mr. Bowen said. “What you hope these people have in common is
discipline, and the ability to lead from assumptions to analysis to conclusions.
But that is not to say that they’re going to use the same analysis, or come to
the same conclusions.”
Edward B. Fiske, who publishes a leading college guide, pointed out that
although John Kerry and George W. Bush attended Yale at about the same time,
“you’d never know they went to the same school.” And while Judge Sotomayor
graduated from the same law school as Justices Clarence Thomas and Samuel A.
Alito Jr., they appear to occupy different parts of the political spectrum.
Calvin Trillin, a journalist and author who has written about his experiences as
a Midwesterner attending Yale in the 1950s, said, “I’m not bothered by the fact
that nine out of nine, or six out of nine, went to Ivy League law schools,”
because the institutions have grown more diverse. “These places have become,
themselves, much more like the country,” Mr. Trillin said.
The court’s ties to elite institutions go back through the nation’s history,
Professor Epstein said. Among the first on the court were John Jay (King’s
College, the future Columbia) and William Cushing (Harvard). Of the nation’s 110
justices, 18 went to Harvard Law, 8 to Yale Law, and 6 to Columbia. (The largest
plurality of justices over all, 44, attended no law school, since one could
practice law in early days without a degree.)
Some justices proudly perpetuate the idea that the right school is an essential
credential. In April, after a talk at the American University Washington College
of Law, Justice Antonin Scalia (Georgetown and Harvard Law) told a student how
he chose his clerks: “From the law schools that basically are the hardest to get
into. They admit the best and the brightest, and they may not teach very well,
but you can’t make a sow’s ear out of a silk purse. If they come in the best and
the brightest, they’re probably going to leave the best and the brightest.”
And trying to defend a candidate who does not bear the imprimatur of an Ivy
League diploma can be a losing battle, leading to comments like the famous
defense of G. Harrold Carswell (Walter F. George School of Law of Mercer
University) by Senator Roman L. Hruska: “Even if he is mediocre, there are a lot
of mediocre judges and people and lawyers. They are entitled to a little
representation, aren’t they, and a little chance?”
Farhana Hossain contributed research.
An Ivy-Covered Path to
the Supreme Court, NYT, 9.6.2009,
For Sotomayor and Thomas, Paths Fork at Race and Identity
June 7, 2009
The New York Times
By JODI KANTOR and DAVID GONZALEZ
If Judge Sonia Sotomayor joins Justice Clarence Thomas on the Supreme Court,
they may find that they have far more than a job title in common.
Both come from the humblest of beginnings. Both were members of the first
sizable generation of minority students at elite colleges and then Yale Law
School. Both benefited from affirmative action policies.
But that is where their similarities end, and their disagreements begin. For the
first time, the Supreme Court would include two minority judges, but ones who
stand at opposite poles of thinking about race, identity and opportunity. Judge
Sotomayor and Justice Thomas have walked parallel paths and yet arrived at
contrary conclusions, not only on legal questions, but on personal ones, too.
Judge Sotomayor celebrates being Latina, calling it a reason for her success;
Justice Thomas bristles at attempts to define him by race and says he has
succeeded despite the obstacles it posed. Being a woman of Puerto Rican descent
is rich and fulfilling, Judge Sotomayor says, while Justice Thomas calls being a
black man in America a largely searing experience. Off the bench, Judge
Sotomayor has helped build affirmative action programs. On the bench, Justice
Thomas has argued against them with thunderous force.
The two may sit together on a court that is struggling over whether race and
ethnicity should be a factor in legal thinking, each pitting his or her hard-won
lessons against the other’s. Both judges are passionate about minority success,
dedicating countless hours to mentorship. But Judge Sotomayor sees herself as
the successful product of diversity initiatives, whereas Justice Thomas, who
thinks of himself as a scarred survivor of those efforts, believes they often
The two judges have lived, not just argued, the strongest cases for and against
affirmative action, said Barry Friedman, a law professor at New York University.
With both on the court, he said, “their voices are going to come to exemplify
the contending positions.”
When Ms. Sotomayor and Mr. Thomas arrived at college — she at Princeton in 1972,
he at Holy Cross in 1968 — they worried about the same thing: what others would
think when they opened their mouths.
Ms. Sotomayor had grown up in the Bronx speaking Spanish; Mr. Thomas’s relatives
in Pin Point, Ga., mixed English with Gullah, a language of the coastal South.
Both attended Catholic school, where they were drilled by nuns in grammar and
other subjects. But at college, they realized they still sounded unpolished.
Ms. Sotomayor shut herself in her dorm room and eventually resorted to
grade-school grammar textbooks to relearn her syntax. Mr. Thomas barely spoke,
he said later, and majored in English literature to conquer the language.
“I just worked at it,” he said in an interview years later, “on my
pronunciations, sounding out words.”
For many East Coast colleges, it was a new era. After the assassination of the
Rev. Dr. Martin Luther King Jr. in 1968, Holy Cross pledged to do its part in
the civil rights movement by recruiting black students; just a few months later,
Mr. Thomas became one of six in his freshman class.
Princeton was integrating not only by race and ethnicity, but also by gender.
Ms. Sotomayor was one of 20 Hispanics in her class, students estimate. Princeton
had admitted women just a few years earlier, and “husband-hunters,” as one of
the alumni still campaigning against their presence called them, were vastly
outnumbered at the college.
When the students arrived, they were subject to constant suspicion that they had
not earned their slots. “It was a question echoed over and over again, not only
verbally but in people’s thoughts,” said Franklin Moore, a former Princeton
administrator. Ms. Sotomayor and Mr. Thomas, honors students in high school,
considered themselves qualified. But to prove their critics wrong, they studied
with special determination.
“We can’t let these people think we just came off the street without anything to
offer Princeton,” said Eneida Rosa, another member of the Hispanic contingent,
describing how seriously she and Ms. Sotomayor took their studies.
The two future judges led similar student organizations — Mr. Thomas helped
found a black student group, while Ms. Sotomayor was co-chairwoman of a Puerto
Rican one — and shared the same liberal politics. They graduated at the top of
their classes. And afterward, they each headed to Yale Law School.
But perhaps because of their backgrounds, Judge Sotomayor and Justice Thomas
came to view their campus experiences in very different ways.
Even by the standards of the Jim Crow South, Mr. Thomas’s childhood was marked
by bitter blows and isolation. He was taunted not only by classmates at his
all-white high school but also by blacks, who called him “ABC,” for “America’s
Blackest Child,” on account of his dark skin. A black among Catholics and a
Catholic among blacks, he sometimes seemed to fit in nowhere at all.
Mr. Thomas learned he could rely only on himself. His father left when he was a
toddler. A few years later, his mother sent him to live with his grandparents,
dumping his possessions in grocery bags and sending him out the front door, he
wrote in his autobiography, “My Grandfather’s Son.”
Ms. Sotomayor also grew up without a father; hers died of heart problems when
she was 9. But her mother was a sustaining force, supporting the family by
working as a nurse. In a recent speech, Judge Sotomayor recalled her mother and
grandmother chatting and chopping ingredients for dinner. “I can’t describe to
you the warmth of that moment for a child,” she said.
In New York, Puerto Ricans were pitied for poverty and blamed for crime. Popular
images were dominated by the gangs of “West Side Story” and bumbling comics with
broken English. According to friends, Ms. Sotomayor was not active in her high
school’s small Latino club. Ethnicity was not something to be ashamed of, they
said, but they did not really celebrate it either.
But on Princeton’s manicured campus, Ms. Sotomayor explored her roots in a way
she never had on trips to Puerto Rico or in “Nuyorican” circles back home. In a
Puerto Rican studies seminar, she absorbed the literature, economics, history
and politics of the island, and by senior year, she was writing a thesis on its
first democratically elected governor. In its dedication, she sounds newly
enchanted with her heritage.
“To my family,” she wrote, “for you have given me my Puerto Rican-ness.”
“To the people of my island, for the rich history that is mine,” she continued.
Back to Their Roots
Ms. Sotomayor was not alone; for many minority students who arrived at elite
colleges, the first thing they wanted to study was their own backgrounds. “What
we did on campus was to use its resources to understand ourselves in a larger
context,” said Eduardo Padro, a New York State Supreme Court justice who was
raised in East Harlem and arrived at Yale in 1971, part of the first group of
working-class Puerto Ricans there.
Ms. Sotomayor also became a passionate advocate for Hispanic recruitment. She
took a work-study job in the admissions office, traveling to high schools and
lobbying on behalf of her best prospects. As co-chairwoman of Accíon
Puertorriqueña, she wrote a complaint accusing Princeton of discrimination,
convinced the leaders of the Chicano Caucus to co-sign it and filed it with the
federal Department of Health, Education and Welfare.
But Ms. Sotomayor was no campus radical. She was more likely to mete out
discipline than to be subjected to it: in an early turn at judgeship, she sat on
a panel that ruled on student infractions.
William Bowen, Princeton’s president at the time, recalled in an interview that
he used to call her for advice on Hispanic issues. After all, the university’s
leadership wanted to make it more diverse, and Ms. Sotomayor’s activism helped
them make their case. As a result of her efforts, other students said, Princeton
hired its first Hispanic administrator and invited a Puerto Rican professor to
While Ms. Sotomayor embraced her ethnicity in college and helped bring more
Hispanics to campus, Mr. Thomas began to worry about the consequences of racial
categorizations and grew skeptical of Holy Cross’s efforts to enroll blacks.
He flirted a bit with black nationalism, reading Malcolm X’s autobiography until
the pages were worn. He drank in Ayn Rand’s ideas about individualism. He
identified with the protagonists of Richard Wright and Ralph Ellison novels,
whose destinies were determined by racial stereotypes.
“I began to think of myself as a man without a country,” he wrote in his
autobiography about his increasing alienation.
Some of his black classmates were losing their way, failing classes or falling
into drug use, and he began to think of the college’s recruitment efforts as
misguided. In his autobiography, he wrote of “these gifted young people being
sacrificed on the altar of an abstract theory of social justice.”
Ms. Sotomayor and Mr. Thomas missed each other at Yale by only a few years, but
they might as well have studied at entirely different institutions.
Given her standout record at Princeton, said James A. Thomas, a former dean of
admissions, Ms. Sotomayor’s background had little role in her acceptance to the
school. Again, she immersed herself in Puerto Rican issues, winning a spot on
the law review with an article about Puerto Rico’s rights to resources in its
seabed, leading the minority students’ association and urging the administration
to hire a tenured Hispanic faculty member. (A quarter-century later, she is
still pressing the school on the issue.)
Mr. Thomas, though, felt out of place from the moment he arrived and only became
more disaffected. He had listed his race on his application and later felt
haunted by the decision.
“I was among the elite, and I knew that no amount of striving could make me one
of them,” he wrote. He ran into financial troubles and applied for scholarship
money from a wealthy Yale family, a process he found humiliating. Friends recall
that he insisted on dressing like a field hand, in overalls and a hat.
Mr. Thomas and Ms. Sotomayor did have one experience in common: law firm
interviewers asked them if they really deserved their slots at Yale, implying
that they might not have been accepted if they were white.
Ms. Sotomayor fought back so intensely — against a Washington firm, now merged
with another — that she surprised even some of the school’s Hispanics. She filed
a complaint with a faculty-student panel, which rejected the firm’s initial
letter of apology and asked for a stronger one. Minority and women’s groups
covered campus with fliers supporting her. Ms. Sotomayor eventually dropped her
complaint, but the firm had already suffered a blow to its reputation.
Mr. Thomas was more private about the experience — even some friends do not
recall it — but he took it hard. With rejection letters piling up, he feared he
would not be able to support his wife and young son.
The problem, Mr. Thomas concluded, was affirmative action. Whites would not hire
him, he concluded, because no one believed he had attended Yale on his own
merits. He felt acute betrayal: his education was supposed to put him on equal
footing, but he was not offered the jobs that his white classmates were getting.
He saved the pile of rejection letters, he said in a speech years later.
“It was futile for me to suppose that I could escape the stigmatizing effects of
racial preference,” he wrote in his autobiography.
From Yale, Mr. Thomas and Ms. Sotomayor took what seemed like entirely different
paths: he as a Reagan official who helped dismantle affirmative action programs;
she as a prosecutor and litigator.
But once in a while, their stories have converged. In their nominations to the
Supreme Court, both were presented as barrier-breaking success stories. Both
have seen those nominations become bogged down in debates about race and
And at times, each of them has viewed opposition to their confirmations in
racial or ethnic terms. When Democrats opposed Justice Thomas’s nomination
because of sexual harassment accusations, he called it a “high-tech lynching,” a
triumph of stereotype.
Judge Sotomayor saw a hitch in her own confirmation for the United States Court
of Appeals for the Second Circuit in a not entirely dissimilar light. Senate
Republicans had held up her nomination for a year, and shortly afterward, she
said they made assumptions about her views simply “because I was Hispanic and a
“I was dealt with on the basis of stereotypes,” she said.
David D. Kirkpatrick contributed reporting, and Kitty Bennett contributed
For Sotomayor and
Thomas, Paths Fork at Race and Identity, NYT, 7.6.2009,
Death Penalty Disgrace
June 1, 2009
The New York Times
By BOB BARR
THERE is no abuse of government power more egregious than executing an
innocent man. But that is exactly what may happen if the United States Supreme
Court fails to intervene on behalf of Troy Davis.
Mr. Davis is facing execution for the 1989 murder of an off-duty police officer
in Savannah, Ga., even though seven of the nine witnesses have recanted their
testimony against him. Many of these witnesses now say they were pressured into
testifying falsely against him by police officers who were understandably eager
to convict someone for killing a comrade. No court has ever heard the evidence
of Mr. Davis’s innocence.
After the United States Court of Appeals for the 11th Circuit barred Mr. Davis
from raising his claims of innocence, his attorneys last month petitioned the
Supreme Court for an original writ of habeas corpus. This would be an
extraordinary procedure — provided for by the Constitution but granted only a
handful of times since 1900. However, absent this, Mr. Davis faces an
extraordinary and obviously final injustice.
This threat of injustice has come about because the lower courts have misread
the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write
when I was in Congress. As a member of the House Judiciary Committee in the
1990s, I wanted to stop the unfounded and abusive delays in capital cases that
tend to undermine our criminal justice system.
With the effective death penalty act, Congress limited the number of habeas
corpus petitions that a defendant could file, and set a time after which those
petitions could no longer be filed. But nothing in the statute should have left
the courts with the impression that they were barred from hearing claims of
actual innocence like Troy Davis’s.
It would seem in everyone’s interest to find out as best we can what really
happened that night 20 years ago in a dim parking lot where Officer Mark
MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA
evidence left behind, the jury that judged Mr. Davis had to weigh the
conflicting testimony of several eyewitnesses to sift out the gunman from the
onlookers who had nothing to do with the heinous crime.
A litany of affidavits from prosecution witnesses now tell of an investigation
that was focused not on scrutinizing all suspects, but on building a case
against Mr. Davis. One witness, for instance, has said she testified against Mr.
Davis because she was on parole and was afraid the police would send her back to
prison if she did not cooperate.
So far, the federal courts have said it is enough that the state courts reviewed
the affidavits of the witnesses who recanted their testimony. This reasoning is
misplaced in a capital case. Reading an affidavit is a far cry from seeing a
witness testify in open court.
Because Mr. Davis’s claim of innocence has never been heard in a court, the
Supreme Court should remand his case to a federal district court and order an
evidentiary hearing. (I was among those who signed an amicus brief in support of
Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will
put this case to rest.
Although the Supreme Court issued a stay of execution last fall, the court
declined to review the case itself, and its intervention still has not provided
an opportunity for Mr. Davis to have a hearing on new evidence. This has become
a matter of no small urgency: Georgia could set an execution date at any time.
I am a firm believer in the death penalty, but I am an equally firm believer in
the rights and protections guaranteed by the Constitution. To execute Troy Davis
without having a court hear the evidence of his innocence would be
unconscionable and unconstitutional.
Bob Barr served in the House of Representatives from 1995 to 2003 and was the
United States attorney for the Northern District of Georgia from 1986 to 1990.
Death Penalty Disgrace,
Justices to Weigh Issue of Patenting Business Methods
June 2, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — The Supreme Court agreed on Monday to decide what sorts of
business methods might be patented, an issue with the potential to reshape
significant parts of the economy.
“This is the most important patent case in 50 years, in particular because there
is so much damage and so much good the court could do,” said John F. Duffy, a
law professor at George Washington University who submitted a brief in the
appeals court in support of neither side.
“The newest areas of technology are most threatened by the issues at stake
here,” Professor Duffy said. “The court taking this is likely to make a lot of
people nervous, including software manufacturers and biotechnology companies.”
In October, the United States Court of Appeals for the Federal Circuit in
Washington significantly narrowed the processes eligible for patent protection,
ruling that only those “tied to a particular machine or apparatus” or
transforming “a particular article into a different state or thing” qualified.
The petitioners in the case, Bernard L. Bilski and Rand A. Warsaw, had sought to
patent a method of hedging risks in the sale of commodities, including the risks
associated with bad weather. The appeals court ruled against them, and it
disavowed statements in earlier cases suggesting that business processes could
be patented so long as they yielded useful, concrete and tangible results.
In urging the Supreme Court to hear the case, the petitioners said the appeals
court’s decision put tens of thousands of patents at risk.
They added that the decision “threatens to stifle innovation in emerging
technologies that drive today’s information-based economy.”
The appeals court attracted supporting briefs on both sides of the issue from
many kinds of businesses, including management consulting, computer software,
insurance and tax accounting firms.
One brief, from several financial services companies, urged the appeals court to
be wary of protecting business processes not tied to devices or tangible
changes. “Business method patents often stifle, rather than promote,
innovation,” the brief said.
The brief also quoted a 2002 article from Judge Richard A. Posner, of a federal
appeals court, who said that business method patents created the potential for
“enormous monopoly power (imagine if the first person to think up the auction
had been able to patent it).”
The federal government urged the Supreme Court not to hear the case, saying the
hedging method at issue was plainly not patentable and that the case did not
affect software or more exotic business methods.
But courts have relied on the decision of the appeals court since October to
deny patent protection to methods of marketing software products, detecting
fraud in credit card transactions and creating real estate investment
instruments. In March, a federal judge in San Francisco wrote that the appeals
court’s decision signaled that “the closing bell may be ringing for business
method patents, and their patentees may find they have become bagholders.”
Justices to Weigh Issue
of Patenting Business Methods, NYT, 2.6.2009,
Court to Hear Case on Inmate’s Retardation
June 2, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Elaborating on its 2002 decision banning the execution of the
mentally retarded, the Supreme Court unanimously ruled on Monday that
prosecutors in Ohio should have a new opportunity to prove that a death row
inmate there was not retarded and thus was eligible to be executed. The
prosecutors were not bound, the court said, by statements in court decisions
issued before 2002 saying that he was retarded.
The inmate, Michael Bies, was convicted in 1992 of kidnapping and murdering a
10-year-old boy. At the time, mental retardation was a factor that juries could
consider in deciding on the proper sentence.
During the sentencing hearing in Mr. Bies’s case, the jury heard testimony from
a psychiatrist who said Mr. Bies was “mildly mentally retarded to borderline
mentally retarded.” The psychiatrist said that Mr. Bies’s I.Q. was in the “65 to
75 range” and that he “carries out the activities of daily life fairly
The jury recommended a death sentence without indicating what role the evidence
about retardation had played in its decision, and the trial judge accepted that
In affirming Mr. Bies’s conviction and sentence, state courts in Ohio said he
suffered “mild to borderline mental retardation” that warranted some weight in
determining the proper sentence. But they found that other factors were more
important and justified a death sentence.
When the Supreme Court banned the execution of retarded offenders in Atkins v.
Virginia in 2002, it did not specify how states were to determine retardation.
The Ohio Supreme Court later ruled that defendants claiming retardation must
prove three things: “significantly sub-average intellectual functioning,” which
would be presumed if the defendant’s I.Q. was under 70; a lack of two or more
fundamental social and practical skills; and that both conditions were present
before age 18.
Last year, a unanimous panel of the United States Court of Appeals for the Sixth
Circuit, in Cincinnati, said prosecutors had “litigated and lost the issue of
petitioner’s mental retardation” and could not reopen the question. The court
ordered that Mr. Bies be “resentenced to receive a sentence other than death.”
But Justice Ruth Bader Ginsburg, writing for the Supreme Court in the case,
Bobby v. Bies, No. 08-598, said the state courts had not “devoted detailed
attention to the issue of mental retardation.”
“No court found, for instance,” Justice Ginsburg wrote, “that Bies suffered
‘significant limitation in two or more adaptive skills.’ ”
Mr. Bies’s lawyers argued that requiring a new hearing on the question of
retardation would subject their client to a form of double jeopardy. Justice
Ginsburg said double-jeopardy protection was unavailable to Mr. Bies because he
had not prevailed at his trial and because the court determinations concerning
retardation were not necessary to the outcomes in the earlier proceedings.
The lower federal courts should have allowed the state court to go forward with
a hearing on whether Mr. Bies was indeed retarded, Justice Ginsburg concluded.
“Recourse first to Ohio’s courts is just what this court envisioned,” she wrote,
“in remitting to the states responsibility for implementing the Atkins
Court to Hear Case on
Inmate’s Retardation, NYT, 2.6.2009,
Justices Gone Wild
June 2, 2009
The New YorkTimes
By ROSS DOUTHAT
Sonia Sotomayor’s confirmation hearings won’t happen for over a month, but
it’s easy to predict how they will go. In a series of preening, long-winded
questions, the members of the Senate Judiciary Committee will attempt to divine
Sotomayor’s position on a variety of controversial topics — from affirmative
action to abortion to presidential power. In a series of polite, evasive
answers, the nominee will feign a studious neutrality on almost every issue that
could come before her during what’s likely to be decades as one of the most
powerful women in the world.
Nobody will explicitly acknowledge the deeper stakes. Sotomayor will be joining
a high court that’s gradually become a kind of extra legislative body — a
nine-person super-Senate graced with the power of the veto, where liberals and
conservatives alike turn when they’re confounded in the Congress.
Complaints about the Supreme Court’s power are almost as old as the
Constitution, but they have more merit now than ever. According to calculations
by the Harvard law professor Jed Shugerman, the Court has gone from overturning
roughly one state law every two years in the pre-Civil War era, to roughly four
a year in the later 1800’s, to over 10 a year in the last half-century. So too
with federal law: Prior to 1954, the Court had struck down just 77 federal
statutes in a century-and-a-half of jurisprudence; in the 50-odd years since,
it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the
Court invalidated federal statutes at an unprecedented rate — and by the barest
of majorities, in many cases. In one eight-year period, the University of
Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional
statutes by a 5-to-4 vote, something that had happened just 25 times in the
previous two centuries.
The public doesn’t seem to mind this increasing assertiveness: The Supreme Court
regularly shows up in polls as the most respected branch of government. But
settling so many vexing controversies with 5-to-4 votes — effectively making
Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a
The right tends to blame the left for the Supreme Court’s expanded ambit, and
not unjustly. The modern Court’s most enduringly controversial power grabs —
with Roe v. Wade leading the way — were usually the work of liberal justices,
and even the more modest liberal theories of jurisprudence tend to depict the
Justices as soldiers in the progressive cause, constrained primarily by what the
political climate allows them to get away with.
But in practice, the main divide between liberal and conservative judges tends
to be over the responsibilities of the federal government, not judicial activism
per se. During the last decade of the Rehnquist Court, for instance, the
conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost
equally willing to vote to strike down legislation. It’s just that Thomas was
much more likely to rule federal actions unconstitutional, while Stevens was
more likely to vote to overturn state laws
So right-wingers, too, have grown accustomed to turning to the Court when their
legislators let them down. On matters ranging from affirmative action to
campaign finance reform to gun control to property rights, Bush-era
conservatives petitioned the Supreme Court — sometimes successfully, sometimes
not — to declare unconstitutional policies that could have been changed
legislatively, had the Republican majority been able to muster the political
capital to do it.
In the current term, conservatives are asking the Court to revise away outdated
provisions of Voting Rights Act — a reasonable proposal, but something a
Republican-controlled Congress could have done in 2006, instead of voting
98-to-0 in the Senate and 390-to-33 in the House to reauthorize the act for
There are bipartisan ways that the Court could be reined in, and the legislative
branch reinvigorated. Shugerman, Caminker and others have proposed a
supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal
legislation. To get conservatives on board, the rule would have to be extended
to state legislation as well. This isn’t as crazy as it sounds — versions of the
supermajority idea have been batted around by left and right alike since
Reconstruction, and merely proposing it might spur the Court toward greater
consensus, and perhaps greater modesty as well.
Absent such constraints, the best reform would be term limits for the Justices,
instead of lifetime tenure. Give them 12 years, rotated on a regular schedule,
and then send them on their way.
Such limits wouldn’t reduce the Supreme Court’s power directly, but it would
help us see the Court for what it has become — a deeply political institution,
as fallible as any other, and answerable, when all is said and done, to us.
Justices Gone Wild, NYT,
The Waves Minority Judges Always Make
May 31, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Justice Thurgood Marshall, the first black member of the Supreme
Court, ended his 24 years there bitter and frustrated. He had been unable, he
said, to persuade his colleagues in many cases concerning racial equality, the
cause to which he had devoted his life.
“What do they know about Negroes?” Justice Marshall asked an interviewer. “You
can’t name one member of this court who knows anything about Negroes before he
came to this court.”
But the other justices did get to know Justice Marshall, and even the more
conservative ones acknowledged that his very presence exerted a gravitational
pull more powerful than his single vote.
“Marshall could be a persuasive force just by sitting there,” Justice Antonin
Scalia told Juan Williams in an interview for a biography of Justice Marshall,
recalling the justices’ private conferences about cases. “He wouldn’t have to
open his mouth to affect the nature of the conference and how seriously the
conference would take matters of race.”
President’s Obama’s nomination of Judge Sonia Sotomayor to serve on the Supreme
Court, where she would be the first Hispanic and the third woman, has raised
questions about how her background would affect her decision-making. But there
is another question, too: How would she alter the larger dynamic among the
The first woman on the court, Justice Sandra Day O’Connor, often says that wise
old women and wise old men reach the same conclusions. But empirical research on
federal appeals courts tugs in another direction.
In sex discrimination and sexual harassment cases, according a 2005 study by
Jennifer L. Peresie in The Yale Law Journal, “female judges were significantly
more likely than male judges to find for plaintiffs.”
Perhaps more surprisingly, the study found, “the presence of a female judge
significantly increased the probability that a male” on a three-judge panel
“supported the plaintiff in the cases.” Indeed, “panels with at least one female
judge decided cases for the plaintiff more than twice as often as did all-male
A study in The Columbia Law Review last year found a similar effect in voting
rights cases. “When a white judge sits on a panel with at least one
African-American judge,” the study, conducted by Adam B. Cox and Thomas J.
Miles, concluded, “she becomes roughly 20 percentage points more likely to find”
a voting rights violation.
In an interview, Ms. Peresie, a Washington lawyer, cautioned against
extrapolating to the Supreme Court from studies of appeals courts. “Maybe one
out of nine is different from one out of three,” Ms. Peresie said.
Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court and
currently the only female justice, said that she and Justice O’Connor, who
preceded her, brought a distinct perspective to the court.
“As often as Justice O’Connor and I have disagreed, because she is truly a
Republican from Arizona, we were together in all the gender discrimination
cases,” Justice Ginsburg recently told Joan Biskupic of USA Today.
But Justice Ginsburg said her own influence in all sorts of cases at the
justices’ conferences was uncertain. “I will say something — and I don’t think
I’m a confused speaker — and it isn’t until somebody else says it that everyone
will focus on the point,” Justice Ginsburg said.
Mark Tushnet, a law professor at Harvard and an authority on the Supreme Court,
said Justice O’Connor’s arrival at the court “did affect the way other justices
“These are older guys,” Mr. Tushnet said. “They haven’t dealt with women on a
professional basis on the whole.” Similarly, he said, “very few of the present
justices have interacted as equals with Hispanic professionals.” All justices
bring their life experiences to the bench in some sense, of course, and Justices
Marshall, O’Connor and Ginsburg seemed to devote special attention to cases
involving the groups they belonged to.
In a 1992 reminiscence, Justice O’Connor wrote that Justice Marshall was
“constantly pushing and prodding us to respond not only to the persuasiveness of
legal argument but also to the power of moral truth.” She recalled the moving
stories Justice Marshall would tell to support his view that racism played a
pernicious role in the administration of capital punishment.
It is not clear, though, that any of those stories caused Justice O’Connor to
change her vote. “Justice O’Connor was not nearly as sympathetic to racial civil
rights claims as she was to gender claims,” said Lawrence Baum, a political
science professor at Ohio State.
Justice Clarence Thomas, the second African-American justice, is by some
measures the most conservative justice since 1937, while Justice Marshall was
the most liberal. “Thomas is living proof and a daily reminder that not everyone
from a particular background has a particular point of view,” said David J.
Garrow, a historian at Cambridge University, in England.
Judge Sotomayor has attracted attention for her musings in a 2001 speech about
the impact her background might have on her decision-making, remarks a White
House spokesman on Friday said reflected a poor choice of words.
“I would hope,” she said, “that a wise Latina woman with the richness of her
experience would more often than not reach a better conclusion than a white male
who hasn’t lived that life.”
She added, in a less noted passage, that giants on the court, including Justice
Benjamin Cardozo, the second Jewish justice, had on occasion stumbled. “Let us
not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on
cases which upheld both sex and race discrimination in our society,” Judge
Still, many judges say that the law is a set of neutral principles that can be
applied mechanically and ought not to vary depending on the judge applying them.
Justice Felix Frankfurter, dissenting in a 1943 decision that struck down a law
requiring students to salute the flag, reminded his colleagues that he was, as a
Jew, a member of “the most vilified and persecuted minority in history” and thus
likely to be sympathetic to a broad interpretation of freedoms guaranteed by the
Constitution. “But as judges,” he went on, “we are neither Jew nor Gentile,
neither Catholic nor agnostic.”
Cases with special resonance for Hispanics may not have quite the same profile
as cases concerning religion, race and gender, but the Supreme Court will
nonetheless face several of them in the years to come, particularly in the areas
of immigration, election law and language education in the public schools.
The presence of a Hispanic justice, Professor Tushnet said, will have the usual
effect. “Every time there’s a new justice,” he said, “everybody has to say, ‘How
will he or she react if I say this?’ ” That is not only an outsider’s view.
Justice David H. Souter, the justice whom Judge Sotomayor hopes to replace, has
written that the addition of a new judicial perspective necessarily unsettles
the existing ones on a court.
“Anyone who has ever sat on a bench with other judges knows that judges are
supposed to influence each other, and they do,” Justice Souter wrote in a 1998
dissent in a death penalty case. “One may see something the others did not see,
and then they all take another look.”
The Waves Minority
Judges Always Make, NYT, 31.5.2009,
Judging Sonia Sotomayor
May 31, 2009
The New York Times
Supreme Court nominees must be fully vetted on a wide range of issues, but
most of the ones being raised about Sonia Sotomayor are not among them.
The first Hispanic nominee to the court is being called racist. She is being
attacked as not smart enough, as too abrasive (a description often applied to
women who speak their minds in public life). There have even been reports that
critics have taken aim at her taste for Puerto Rican food.
It is time to elevate the discussion to where it belongs: the Constitution and
the role of the judiciary.
The talking point conservatives pushed hardest last week — to the alarm finally
of some Republican senators — was a 2001 speech in which Judge Sotomayor said
she hoped a “wise Latina woman with the richness of her experiences would more
often than not reach a better conclusion than a white male who hasn’t lived that
The context matters: she was pointing out that throughout history even esteemed
white male justices like Oliver Wendell Holmes voted to uphold race and sex
discrimination. She said accidents of birth inform people’s views, but judges
must strive to look beyond them.
Several justices, including some conservatives, have made similar comments.
Samuel Alito, an Italian-American, said at his confirmation hearing: “When I get
a case about discrimination, I have to think about people in my own family who
suffered discrimination because of their ethnic background or because of
religion or because of gender. And I do take that into account.” Clarence Thomas
told the Senate he could “walk in the shoes of the people who are affected by
what the court does.”
Critics have questioned Judge Sotomayor’s intellect — she graduated from
Princeton summa cum laude and from Yale Law School — and have said her written
opinions lack flourish. Justice Alito had a similar résumé, yet there was little
talk of his intellectual capacity. If writing bland opinions were a
disqualifier, there would be no former appeals court judges on the Supreme
Some of Judge Sotomayor’s detractors seem uncomfortable with her Puerto Rican
heritage. Tom Tancredo, a former Republican congressman, raged about her ties to
the National Council of La Raza, calling it, absurdly, a “Latino K.K.K.” A
writer on the National Review Web site fretted that the accent on the final
syllable of Sotomayor might mean she is insufficiently assimilated.
Another attack is that Judge Sotomayor is too combative on the bench. It is not
hard to find lawyers who will say, usually anonymously, that a judge questioned
them too sharply. In this case, this criticism has been more than outweighed by
colleagues, lawyers and former clerks who have attested to her judicial
temperament and good character.
These broadsides are a distraction. Despite her long service as a federal judge,
Judge Sotomayor’s record on many important issues is sparse. Senators should
question her about her general approach to the Constitution and to judging. They
need to learn more about her thoughts on the right to privacy — a critical
doctrine that provides the basis for abortion rights — on church-state
separation and on other subjects.
Supreme Court nominees should not go into specifics about cases they might
judge. But in recent years, the Senate has allowed them to be far too opaque
about their broader views on the Constitution and judging.
Clearly, conservative groups and Republican elected officials see this
nomination as a way to score points off wedge issues that excite their base. It
diminishes everyone when a nomination process deteriorates into character
assassination and ethnic intolerance.
Judging Sonia Sotomayor,
Nominee’s Links With Advocates Fuel Her Critics
May 29, 2009
The New York Times
By RAYMOND HERNANDEZ and DAVID W. CHEN
In the 1980s, the Puerto Rican Legal Defense and Education Fund sued the New
York City Police Department, claiming that its promotion exams discriminated
against Latinos and African-Americans.
The fund, one of the advocacy groups pressing similar cases across the country,
also helped redraw voting districts in the city that increased the number of
Hispanic elected officials. The defense fund even sued a former Reagan
administration official for defamation after he claimed that virtually all
Puerto Ricans in New York received food stamps.
All those efforts were backed by the defense fund’s board of directors, an
active and passionate group that included a young lawyer named Sonia Sotomayor,
who this week was chosen by President Obama to join the country’s highest court.
Ms. Sotomayor’s involvement with the defense fund has so far received scant
attention. But her critics, including some Republican senators who will vote on
her nomination, have questioned whether she has let her ethnicity, life
experiences and public advocacy creep into her decisions as a judge. It seems
inevitable, then, that her tenure with the defense fund will be scrutinized
during her confirmation hearings.
Curt Levey, executive director of Committee for Justice, a conservative legal
group active in judicial nominations, said that “while it’s fine to let your
Puerto Rican heritage influence — or any heritage for that matter — influence
your positions when you’re on a board, it’s quite a different story when you’re
a judge, and I wonder whether she knows the difference.”
Of course, it is not as if a lawyer and judge with a history of involvement in
racial issues has not made it onto the Supreme Court. Thurgood Marshall, a
fierce advocate for racial justice as a lawyer for the N.A.A.C.P., sailed onto
the highest bench in the 1960s.
The White House, in a statement, emphasized Judge Sotomayor’s experience issuing
more than 3,000 decisions from the bench and played down her influence on the
board, saying that staff attorneys handled the cases. The White House also said
that the case involving minority police officers had its origins in litigation
that predated her arrival on the board.
Founded in 1972, the Puerto Rican Legal Defense and Education Fund, which
recently changed its name to LatinoJustice PRLDEF, is a public-interest law
group with its own long record of civil rights battles. Ms. Sotomayor joined its
board in 1980 when she was a young prosecutor in Manhattan and fresh out of Yale
Law School. It was full of young, idealistic Latino lawyers like her who were
eager to make a mark.
“She just believed in the mission,” Luis Alvarez, a former chairman of its
board, said of Ms. Sotomayor. “This was a highly refined group of individuals
who came from the premier academic institutions. It was almost like Camelot. It
was a wonderful growth period.”
But Ms. Sotomayor stood out, frequently meeting with the legal staff to review
the status of cases, several former members said. And so across her 12 years on
the board — she left when she was appointed a federal judge in 1992 — she played
an active role as the defense fund staked out aggressive stances on issues like
police brutality, the death penalty and voting rights.
The board monitored all litigation undertaken by the fund’s lawyers, and a
number of those lawyers said Ms. Sotomayor was an involved and ardent supporter
of their various legal efforts during her time with the group.
Its efforts helped bring bilingual education to public schools around the
country. In 1981, the fund filed a lawsuit that prompted a federal court, on the
eve of the city’s primary elections, to block voting in New York City. The suit,
supported by Ms. Sotomayor and the rest of the board, alleged that the new City
Council district boundaries diminished the influence of minority voters.
“It was a stunning victory,” recalled Cesar A. Perales, the defense fund’s
president and general counsel, noting that the entire board embraced the effort.
“Imagine you wake up and are going to vote and the headlines tell you, ‘No
Election Today.’ ”
Ms. Sotomayor was part of a three-person committee of the board that recommended
in 1981 that the fund oppose the reinstitution of the death penalty in New York
State, according to board minutes from that time.
“Capital punishment is associated with evident racism in our society,” the panel
wrote. “It creates inhuman psychological burdens for the offender and his/her
Not every effort was a success. The lawsuit against the Reagan administration
official, for example, was dismissed, and some former fund officials concede
that publicity may have been a motivating factor in filing the suit.
One of the legal defense fund’s most important suits charged that a Police
Department promotional exam discriminated against minority candidates. It was
filed on behalf of the Hispanic Society of the New York police. The exams, the
group charged, did not really measure the ability to perform in a more senior
position, and were yielding unfair results: Too many whites were doing well, and
too many Hispanics and African-Americans were not.
“We saw the lawsuit as a vehicle to level the playing field,” said Mr. Perales.
“It’s important to understand that she and the rest of the board, in that
context, shared the philosophy that we had to remove the barriers to the
advancement of Latinos.”
The suit resulted in a settlement with the city that produced greater numbers of
promotions to sergeant for Latino and African-American officers.
Some white officers, however, felt that the settlement was unfair. They said
that many white officers had outscored their Hispanic and African-American
counterparts, yet were not allowed to fill the spots because of quotas. They
sued, and their case, Marino v. Ortiz, reached the Supreme Court, where it
failed by a 4-to-4 vote in 1988.
Two decades later, as a federal appellate judge, Ms. Sotomayor was again forced
by a volatile case to confront the issue of promotion tests and race. She and
her colleagues on the United States Court of Appeals for the Second Circuit were
asked to review a ruling on a claim by white firefighters in New Haven, Conn.,
that they had lost promotions because of their race — even though they had
performed well on the Fire Department’s tests.
Judge Sotomayor voted to affirm the lower court’s dismissal of the case, and her
ruling is behind some of the most intense debate about her selection. Mr. Levey
said that the employment discrimination case filed by the defense fund on behalf
of Hispanic police officers raised questions about Judge Sotomayor’s credibility
in the New Haven case. “It adds to the conviction that this was not accidental,
and that she had a very specific agenda here.”
Nominee’s Links With
Advocates Fuel Her Critics, NYT, 29.5.2009,
Sotomayor’s Sharp Tongue Raises Issue of Temperament
May 29, 2009
The New York Times
By JO BECKER and ADAM LIPTAK
WASHINGTON — Judge Sonia Sotomayor, President Obama’s Supreme Court choice,
has a blunt and even testy side, and it was on display in December during an
argument before the federal appeals court in New York. The case concerned a
Canadian man who said American officials had sent him to Syria to be tortured,
and Judge Sotomayor peppered a government lawyer with skeptical questions.
“So the minute the executive raises the specter of foreign policy, national
security,” Judge Sotomayor asked the lawyer, Jonathan F. Cohn, “it is the
government’s position that that is a license to torture anyone?”
Mr. Cohn managed to get out two and a half words: “No, your hon—— .”
Judge Sotomayor cut him off, then hit him with two more questions and a flat
declaration of what she said was his position. The lawyer managed to say she was
wrong, but could not clarify the point until the chief judge, Dennis G. Jacobs,
stepped in, asking, “Why don’t we just get the position?”
To supporters, Judge Sotomayor’s vigorous questioning of the Bush
administration’s position in the case of the Canadian, Maher Arar, showcases
some of her strengths. She is known as a formidably intelligent judge with a
prodigious memory who meticulously prepares for oral arguments and is not shy
about grilling the lawyers who appear before her to ensure that she fully
understands their arguments.
But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative
manner — some lawyers have described her as “difficult” and “nasty” — raises
questions about her judicial temperament and willingness to listen. Her demeanor
on the bench is an issue that conservatives opposed to her nomination see as a
potential vulnerability — and one that Mr. Obama carefully considered before
Judge Sotomayor’s colleagues on the United States Court of Appeals for the
Second Circuit say her tough and direct questioning reflects engagement and,
sometimes, an effort to persuade her colleagues. Those qualities, coupled with a
gregarious personality, they said, make her a powerful force behind the scenes,
where she has used her mastery of the cases to change minds, improve opinions
and forge consensus.
Those skills, some observers say, could make her an able politician on the
Supreme Court and allow her to serve as an intellectual counterweight to Justice
Antonin Scalia, a conservative who is known for his acerbic questioning.
“In some ways she could match, well, the other New Yorker on the court, Justice
Scalia,” said Douglas Kmiec, a law professor at Pepperdine University. “He
expects people to give back as good as he gives, and I expect that when Justice
Sotomayor is on the court, his wish will be fulfilled.”
Both colleagues and lawyers who have argued before her agree that her style is
“They call it a hot bench when a judge asks a lawyer a lot of questions — well,
she isn’t afraid of running a hot bench,” said H. Raymond Fasano, a Republican
immigration lawyer who has appeared before her 24 times, mostly in asylum cases,
and is a fan. “When a judge asks a lot of questions, that means she’s read the
record, she knows the issues and she has concerns that she wants resolved. And
that’s the judge’s job.”
Other lawyers, though, are not so enamored. In the Almanac of the Federal
Judiciary, which conducts anonymous interviews with lawyers to assess judges,
she has gone from generally rave reviews to more tepid endorsements. Among the
comments from lawyers was that she is a “terror on the bench” who “behaves in an
out-of-control manner” and attacks lawyers “for making an argument she doesn’t
“I felt she could be very judgmental in the sense that she doesn’t let you
finish your argument before she jumps in and starts asking questions,” said
Sheema Chaudhry, who appeared before Judge Sotomayor in an asylum case last
year. “She’s brilliant and she’s qualified, but I just feel that she can be
very, how do you say, temperamental.”
Gerald Lefcourt, a New York defense lawyer, has dealt with Ms. Sotomayor since
she was an assistant district attorney and later a federal district judge. Mr.
Lefcourt said she was “more strident and much more vocal” than some of her
colleagues in his most recent appearance before her, involving an appeal of a
securities fraud conviction. “She used her questioning to make a point,” he
said, “as opposed to really looking for an answer to a question she did not
Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor
there and now sits with her on the Second Circuit, said complaints that she had
been unduly caustic had no basis. For a time, Judge Calabresi said, he kept
track of the questions posed by Judge Sotomayor and other members of the
12-member court. “Her behavior was identical,” he said.
“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi
added. “It was sexist, plain and simple.”
He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to
reconsider his position in a number of instances. “And I’m a tough act,” he
Other colleagues said Judge Sotomayor frequently sent unusually detailed,
closely reasoned and helpful memorandums critiquing their draft opinions. “She
will offer substantive suggestions,” said Judge Jon O. Newman, “but she will not
be tenacious in making sure the language comes out exactly her way.”
Laurence H. Tribe, a Harvard law professor who served as an adviser in the
process that led to Judge Sotomayor’s selection for the Supreme Court, said the
White House had found concerns about her temperament unfounded, concluding
instead that her background and her concern with the consequences of court
rulings would be a “healthy antidote” to more formalist legal theories advocated
by the Supreme Court’s conservative wing.
“The president’s inquiries into the way she interacts with others,” Professor
Tribe said, “convinced him that she would be a positive force in the chemistry
of the Supreme Court.”
Judge Sotomayor’s outgoing demeanor presents a contrast to that of the justice
she hopes to replace, David H. Souter, who is retiring in both senses of the
Judge Calabresi said that Judge Sotomayor could quickly transform the atmosphere
at the Supreme Court. “I would think she would try to make it a place where
people got along more, talked to each other more,” he said.
Judge Richard C. Wesley, another colleague, agreed. He said his interactions
with Judge Sotomayor had been “totally antithetical to this perception that has
gotten some traction that she is somehow confrontational.”
Judge Wesley said that in cases like the terrorism claims involving the Canadian
man, Mr. Arar, whose case is still pending, there were “tough and important
issues” that needed to be addressed, and that questioning could be intense.
“And sometimes, judges themselves get involved in the argument,” he said. “You
press a bit, and sometimes some of your colleagues may think you pressed too
hard. But let’s be fair. I think there is a difference between tough questioning
and demeaning questioning, and I haven’t seen that line crossed by any of my
Mr. Cohn, the government lawyer in the Arar case, said he had not been taken
aback by Judge Sotomayor’s volley of inquiries. “I thought her questions and
demeanor were reasonable and fine,” he said.
Itai Maytal contributed reporting from New York.
Sotomayor’s Sharp Tongue
Raises Issue of Temperament, NYT, 29.5.2009,
Sotomayor Pick a Product of Lessons From Past Battles
May 28, 2009
The New York Times
By PETER BAKER and ADAM NAGOURNEY
WASHINGTON — President Obama’s aides were laying down the law. They had
invited liberal activists to the White House two weeks ago to discuss his coming
Supreme Court selection, but they were not asking for candidates.
Instead, they told the activists not to lobby for their favorites in the news
media or talk down candidates they opposed. The message, as one surprised
visitor heard it, was “get on board or get out of the way.”
In the months leading up to Judge Sonia Sotomayor’s selection this week, the
White House methodically labored to apply lessons from years of nomination
battles to control the process and avoid the pitfalls of the past, like
appearing to respond to pressure from the party’s base or allowing candidates to
be chewed up by friendly fire.
The selection process for Mr. Obama’s first Supreme Court nomination brought
together a group that had been thinking about this moment for a long time, from
a president who taught constitutional law to a vice president who voted on the
confirmation of every member of the current court. Sitting in the room were
advisers like Ronald A. Klain and Cynthia Hogan, who have been involved in
nomination fights going back to Clarence Thomas.
Even before Justice David H. Souter publicly announced nearly four weeks ago
that he was retiring, Rahm Emanuel, the White House chief of staff who lived
through two nominations during Bill Clinton’s presidency, commissioned a
strategy memorandum from Mr. Klain intended to dictate the process. Secrecy was
paramount. As the decision neared, aides disguised meetings on the subject even
on the president’s internal schedule by blocking out time under the label “Chief
of Staff Strategy.”
From the beginning, Mr. Obama had been focused on Judge Sotomayor, a federal
appeals court judge from New York, officials said Wednesday. She had a
compelling life story, Ivy League credentials and a track record on the bench.
She was a Latina. She was a woman. She checked “each of the grids,” as Mr.
Obama’s team later put it. And by the time the opportunity arrived, it became
her nomination to lose.
Over the course of the last four weeks, Mr. Obama nursed doubts about Judge
Sotomayor and entertained alternatives, aides said. He called around, asking
allies about her reputation for brusqueness. At times, he grew increasingly
enamored of other candidates, particularly Judge Diane P. Wood, whom he knew
from Chicago. But by the time Judge Sotomayor left the White House last Thursday
after what Mr. Obama told aides was a “dense discussion” of constitutional law,
he was pretty much sold.
“You had to knock her off the pedestal,” Mr. Emanuel said, “and nobody did.”
The selection process got its start in the weeks after Mr. Obama’s election last
fall when he gathered advisers in a conference room in downtown Chicago one day.
The court was on his mind.
“Just because we don’t have a vacancy right now doesn’t mean we shouldn’t work
on it,” he told the group, according to participants. “The day we get a vacancy,
we want to have a short list of people ready.”
Mr. Obama already had one in mind and threw out several names, including Judge
Sotomayor, aides said. His new White House counsel, Gregory B. Craig, got to
work assembling more names. In mid-April, the White House privately got word
from Justice Souter that he was preparing to retire at the end of the term in
June, and preparations accelerated.
By the time Justice Souter’s decision leaked on April 30, officials said, the
White House had full dossiers on nearly all of the major candidates and within
days Mr. Obama was given 10-page memorandums on each of them to study over the
weekend. By the next week, Mr. Craig’s office gave him 60- to 70-page
memorandums on each prospect.
Mr. Obama, who was president of the law review at Harvard and married a Harvard
Law School graduate, recently said he became so engrossed in the memorandums
that he missed a basketball game one night.
“He didn’t need a Constitutional Law 101 primer to prepare for this,” said
Charles J. Ogletree, a Harvard law professor who spoke with Mr. Obama about the
process in early May.
“There were five things that were on his mind: age, experience, independence,
confidence and diversity,” Mr. Ogletree recalled. “And when I say diversity,
it’s not just background and race; I mean diversity of experience, of character,
of judgment and of points of view.”
With Mr. Craig also dealing with national security issues, Mr. Emanuel recruited
Mr. Klain and Ms. Hogan from Vice President Joseph R. Biden Jr.’s office to run
the day-to-day process. Mr. Klain, the vice president’s chief of staff, had been
involved in nomination fights in the Clinton White House and on Mr. Biden’s
Senate staff, while Ms. Hogan, the vice president’s counsel, worked for the
Judiciary Committee during three confirmations.
“We wanted people who had been through this before,” said David Axelrod, the
president’s senior adviser. “This was not an accident.”
Recalling nominations that had foundered on poor research, the White House team
assigned two inside lawyers to vet each candidate’s public speeches and rulings
and recruited outside law firms to examine each candidate’s personal finances,
taxes, medical history and ethics.
In the end, the White House considered nine candidates. In addition to Judges
Sotomayor and Wood, officials said they were Solicitor General Elena Kagan;
Homeland Security Secretary Janet Napolitano; Gov. Jennifer M. Granholm of
Michigan; Chief Justice Leah Ward Sears of the Georgia Supreme Court; Justice
Carlos R. Moreno of the California Supreme Court; Judge Merrick B. Garland of
the United States Court of Appeals for the District of Columbia Circuit; and
Judge Ruben Castillo of Federal District Court in Illinois.
Mr. Obama quickly found himself being lobbied by fellow Democrats. In an
interview, Representative Jose E. Serrano of New York described a campaign he
and his colleague Representative Nydia M. Velázquez conducted on behalf of Judge
Sotomayor that included a personal plea at the Cinco de Mayo celebration at the
Hoping to shut off as much outside pressure as possible, the White House
summoned leaders of liberal groups for a series of meetings, at the White House
and elsewhere. The deputy White House chief of staff, Jim Messina, issued the
edict about not floating names through the news media or engaging in daily
battles about the pros and cons of various candidates, warning that it would be
“counterproductive,” participants said.
As he narrowed his choices, aides said, Mr. Obama kept asking for more original
writings by the candidates, and he called every member of the Judiciary
Committee, something few if any presidents have done.
In his conversations with senators, Mr. Obama did not let on whom he was
thinking about, but described what kind of nominee he was looking for and asked
for names. “I don’t think he saw the process as him saying, ‘Which of these five
people would you oppose or support,’ ” said Senator Patrick J. Leahy of Vermont,
the Judiciary Committee chairman.
“He asked if I had any suggestions for nominees,” said Senator Charles E.
Grassley, Republican of Iowa, a member of the committee for 29 years. “This is
the first time I’ve ever been called by a president on a Supreme Court
nomination, be it a Republican or a Democrat.”
As the president deliberated, Mr. Klain, Ms. Hogan and Dan Pfeiffer, the deputy
communications director, began meeting with prospective finalists. To preserve
secrecy, they held several sessions around the table of Ms. Hogan’s home in
Bethesda, Md. Judge Sotomayor was first interviewed by telephone so she would
not be seen coming to Washington.
Four candidates were invited to the White House to interview with Mr. Obama:
Judges Sotomayor and Wood, Ms. Kagan and Ms. Napolitano. It was not lost on
those under consideration that none who made it to the final stage were men.
“I think they ended up making a bad evidentiary record for themselves by not
interviewing one male,” said a judge whose name came up early in the process.
Impressed by Judge Sotomayor, Mr. Obama gathered his team around noon Monday in
the dining room off the Oval Office. “I’m almost there,” he said as he ate a
salad, one participant recalled. “I think it’s going to be her.”
By 9 p.m., he had called to offer her the job.
“He ended up where we started out,” Mr. Craig said. “After all the work, he was
thinking about Sonia Sotomayor at the beginning and he was thinking about her at
the end. She withstood four months, five months of intense scrutiny by the White
House counsel’s office and third parties.”
Jeff Zeleny and Jim Rutenberg contributed reporting.
Sotomayor Pick a Product
of Lessons From Past Battles, NYT, 28.5.2009,
Sotomayor’s Appellate Opinions Are Unpredictable, Lawyers and Scholars Say
May 28, 2009
The New York Times
By JOHN SCHWARTZ
In the decade she has served on the Second Circuit Court of Appeals — the
busiest appellate court for business and financial matters in the nation — Judge
Sonia Sotomayor has authored some 150 civil and business cases and voted on
hundreds more. But many lawyers and scholars who have examined her record
closely say that her opinions in this field are unpredictable, and do not put
her clearly in a pro- or anti-business camp.
In a 2006 property rights case, she upheld a town’s effort to take private
property for redevelopment. But in 2002, she supported property rights in a case
involving impounded cars.
A 2006 case in which she allowed class-action lawsuits against Merrill Lynch
suggested to some business lawyers that she was amenable to lawsuits against big
corporations. But in a 2006 securities case against the same company, she voted
with the majority in refusing to allow a class to be formed.
“It’s impossible to look at these decisions and say, oh, all of these results
clearly reflect a pre-existing, across the board one way or another,” said
Andrew J. Pincus, an lawyer who has argued many commercial cases before the
Some conservatives have pointed to individual opinions and asserted that they
show dire times ahead for business if Judge Sotomayor is confirmed. Michael
Greve, an American Enterprise Institute scholar, writing in National Review
Online, placed Judge Sotomayor “among the most aggressively pro-plaintiff,
anti-business appellate judges in the country.”
But others who have examined Judge Sotomayor’s work say the opinions reveal a
practical streak. “She does seem to take every one as it comes,” Mr. Pincus
said, an approach he compared to that of Justice David H. Souter. He said she
issues business opinions that hew closely to the precedents of her circuit and
of the Supreme Court.
There is no single factor that businesses look for in a jurist, though in
general the financial world would like to see fewer lawsuits. So a tendency to
allow suits against businesses to go forward is a worrying sign to pro-business
interests, said Jonathan Adler, a law professor and director of the Center for
Business Law and Regulation at Case Western Reserve University School of Law in
Cleveland. But he cited a few cases that might raise red flags for the financial
world, including these:
¶Riverkeeper v. E.P.A., a 2007 case in which Judge Sotomayor ruled that the
Environmental Protection Agency should not have weighed costs against
environmental benefits in requiring water intake structures for power plants
that protect fish. The Supreme Court overruled that decision in April by a vote
of 6 to 3.
¶In a securities case, Judge Sotomayor interpreted a 1998 federal law intended
to limit class-action lawsuits in a way that allowed such suits. In 2006, the
Supreme Court reversed Judge Sotomayor’s opinion in the case, Merrill Lynch v.
Dabit, by a vote of 8 to 0, and archly called the logic allowing the exemption
“odd, to say the least.”
¶In Malesko v. Correctional Services, Judge Sotomayor found that a legal theory
that allows plaintiffs to sue the government over misconduct could be applied to
a private company operating under a government contract. The Supreme Court
reversed the ruling by a vote of 5 to 4.
¶And in a key property-rights case, Didden v. Village of Port Chester, Judge
Sotomayor took part in a brief unsigned order from the Second Circuit in 2006.
The order, which followed the Supreme Court’s major property-taking decision in
Kelo v. City of New London, supported a town’s effort to seize property for the
use of a developer. Richard A. Epstein, a conservative legal scholar at the
University of Chicago, wrote in Forbes magazine that “American business should
shudder in its boots if Judge Sotomayor takes this attitude to the Supreme
Other legal scholars argue, however, that for any case that conservatives
deplore, there is a counterexample. For example, Joseph A. Grundfest, a former
commissioner of the Securities and Exchange Commission, contrasted the Merrill
Lynch case with a similar one in which Judge Sotomayor voted on the company’s
side. Taken together, he said, the two cases suggest that “this judge can’t be
neatly pigeonholed as pro-plaintiff or pro-defendant in securities litigation
Ilya Somin, an assistant professor of law at George Mason University who has
written critically about the decision in the property-rights case, said Judge
Sotomayor “does deserve some substantial credit” for a 2002 case in which she
struck down New York City’s policy of seizing vehicles in certain offenses.
Some of the attacks against the judge’s business rulings turn a complex legal
record into a caricature, said Walter K. Olson, a senior fellow at the Manhattan
Institute, a conservative organization, and the editor of a blog,
Overlawyered.com. While expressing some qualms about Judge Sotomayor’s views,
Mr. Olson said “she will not be as liberal as many of the Republicans are saying
— but no one could be that liberal, even if they tried.”
Jill E. Fisch, a professor at the University of Pennsylvania Law School and an
expert in securities regulation, suggested that in such areas of specialization,
Judge Sotomayor’s opinions tend to be “fairly technical and restrained,” but
without the flair of a jurist who feels deeply one way or another about the
“I don’t see this as one of her core interests,” she said, suggesting that in
such cases the judge might “look at the letter of the law, and follow the
leadership of those who have more passion for those questions.”
Politics has become a poor predictor in business law, said Thomas H. Dupree Jr.,
a lawyer who has argued cases before Judge Sotomayor and who served in the
Justice Department in the administration of President George W. Bush. The
Supreme Court has largely “de-politicized” many business cases, he said,
pointing to the contentious issue of punitive damages, opposed by business.
Recent theories of constitutional restrictions on punitive damages have arisen
from the more liberal wing of the court, even though the rulings protect
business. In such an unpredictable environment, he suggested, Judge Sotomayor
might fit right in.
Opinions Are Unpredictable, Lawyers and Scholars Say, NYT, 28.5.2009,
A Judge’s Own Story Highlights Her Mother’s
May 28, 2009
The New York Times
By SCOTT SHANE and MANNY FERNANDEZ
WASHINGTON — The morning Sonia Sotomayor was confirmed as a federal appeals
court judge in 1998, she began calling her mother to share the good news. Her
brother, Juan, joined in the hunt, and they kept calling all day long,
exasperated and a little concerned until they finally reached her at home in the
It turned out that their mother, a nurse who had become a sort of one-woman
social services agency for her sprawling apartment complex, had spent the day
accompanying an ailing neighbor to the doctor.
It was classic Celina Sotomayor, a glimpse of the indefatigable woman who
overcame stark deprivation in Puerto Rico during childhood, escaped by way of
the military during World War II, was widowed at an early age, and supported her
two children on their way to professional success in law and, for Juan
Mrs. Sotomayor, 81, was not hard to find on Tuesday, the day President Obama
chose her daughter for the Supreme Court. She was the one weeping copiously on
national television as Sonia Sotomayor expressed her gratitude.
“I have often said that I am all I am because of her, and I am only half the
woman she is,” Judge Sotomayor said, in a moment of raw emotion that has
resonated with mothers and daughters far beyond the White House.
“I thank you for all that you have given me and continue to give me,” she
continued, addressing her mother and stepfather, Omar Lopez.
President Obama referred to Judge Sotomayor’s “extraordinary journey” from an
East Bronx housing project to the federal appellate bench. But her mother’s
life, beginning on the impoverished island where she was born in the farming
community of Lajas in 1927, seems as compelling in its own right.
As a schoolgirl, Celina Baez told friends, she and her four siblings had only
one pencil to share; it was guarded by her parents and doled out carefully. She
memorized her lessons by pretending to teach them to the trees behind her modest
home, assigning a pupil’s name to each one and wielding a stick as a pointer.
In those days, Judge Sotomayor recalled in a lengthy tribute to her mother at
the 1998 appeals court ceremony, the island’s per capita income of $200 was less
than a quarter of that in the poorest state, and the literacy rate was 39
From that meager start, Celina’s life grew tougher. Her mother, bedridden with
health problems for years, died when Celina was 9, and her father promptly
abandoned the family. Celina was raised by her older sister, Aurora, in San
She escaped at 17 by enlisting in the Women’s Army Corps, arriving in Georgia
for training in 1944, speaking little English and unfamiliar even with how
telephones worked. After her service, she married another Puerto Rican, Juan
Luis Sotomayor, who went to work as a tool-and-die worker while she completed
her high school equivalency certificate at James Monroe High School in the
Mrs. Sotomayor got a job at Prospect Hospital, a small private facility in the
South Bronx where she would spend 35 years. She started as a telephone operator,
and with the owner’s encouragement, obtained a practical nurse’s license.
Mr. Sotomayor’s death of a heart attack at 42, when Sonia was 9, made Mrs.
Sotomayor the family’s sole support. She scrimped to put the children through
Roman Catholic schools and to buy the only set of Encyclopaedia Britannica in
their Bronx housing project.
“My brother and I plagiarized many a school report from those books, but I can
remember the enormous financial burden that purchase placed on my mother,” Judge
Sotomayor recalled in 1998.
When the family moved to Co-Op City in the late 1960s, a definite step up, Mrs.
Sotomayor took the smaller of the two bedrooms, dividing the larger one for
Sonia and Juan, neighbors remembered.
Sonia Sotomayor’s friends remember her mother as a strict parent who insisted on
hard work at school and kept a close eye on who her children’s friends were.
“They had their rules,” recalled Jeanette Valdespino-Torres, a childhood friend
of Judge Sotomayor. “She worked, and basically no one was allowed out of the
house until she came home from work.”
But she also made visiting teenagers feel valued, recalled Kenneth K. Moy, a
friend of Sonia at Cardinal Spellman High School. “She would really listen, and
she treated the teenager as someone with the chops to make a decision,” Mr. Moy
The apartment, he said, was “a welcoming and communal place,” where members of
the Sotomayors’ extended family often seemed to stop by for counsel. “When
people in the family had troubles or concerns, they’d come to Celina and say,
‘What do you think?’ ”
Despite the demands on her as a single mother, recalled Dinorah Tirado, a friend
and Co-Op City neighbor for many years, Mrs. Sotomayor never complained. “Never,
never,” Mrs. Tirado said. “She never said, ‘It’s hard,’ or ‘I can’t make ends
At the sprawling apartment building, she became unofficial medical consultant,
Mrs. Tirado said. When another neighbor had cancer, Mrs. Sotomayor would rise
early each day before work to make and deliver her breakfast. Friends turned to
her with every ailment.
“Whoever was sick rang the doorbell,” Mrs. Tirado said. Mrs. Sotomayor, she
recalled, even “removed my cat’s stitches.”
During Sonia’s junior year at Cardinal Spellman, her mother sat the two children
down and proposed that she go to college to earn her registered nurse degree,
increasing her income to make up for the impending loss of her late husband’s
Social Security benefit.
“My mom was like no student I knew,” the judge wrote in 1998. “She got home from
school or work and literally immersed herself in her studies, working until
midnight or beyond, only to get up again before all of us.”
Mrs. Sotomayor became Prospect Hospital’s emergency room supervisor until the
hospital closed in the mid-1980s. She then worked at a methadone clinic in the
South Bronx until retiring in the early 1990s, not long after she met Mr. Lopez.
They married and now live in a retirement community in Margate, Fla., where Mr.
Lopez works in an auto parts store. Mrs. Sotomayor takes morning walks with a
friend, Sylvia Gutierriez, who said they talk about movies or music — “no
politics, no religious stuff.”
A gaggle of reporters was waiting in the rain when Celina Sotomayor arrived home
on Wednesday afternoon from Washington.
Not for the first time, and not for the last, she spoke of her pride in her
daughter, alternating English and Spanish.
“She was always intelligent and focused,” the mother said.
Did she believe her daughter would get through the Senate confirmation process
without trouble? “Esperamos,” she replied — We hope.
As for her own role in raising the possible future Supreme Court justice?
“I don’t know what I did,” Celina Sotomayor said. “I was just there.”
Scott Shane reported from Washington, and Manny Fernandez from New York.
Reporting was contributed by Eric Lichtblau in Washington, David Gonzalez and
Colin Moynihan in New York and Carmen Gentile Jr. in Margate, Fla. Kitty Bennett
contributed research from Washington.
A Judge’s Own Story Highlights Her Mother’s,
The New Justice
May 27, 2009
The New York Times
President Obama seems to have made an inspired choice in picking Judge Sonia
Sotomayor for the Supreme Court. She has an impressive judicial record, a
stellar academic background and a compelling life story. Judge Sotomayor would
also be a trailblazing figure in the mold of Thurgood Marshall, becoming the
first member of the nation’s large and growing but still under-represented
Hispanic population to serve on the court.
Based on what we know now, the Senate should confirm her so she can join the
court when it begins its new term in October.
It’s impossible not to be moved by Judge Sotomayor’s story — born in the Bronx
to Puerto Rican parents and brought up in a city housing project. She was found
to have diabetes as a child, and her father, a factory worker, died when she was
9, leaving her mother, a nurse, to raise her and her brother. Judge Sotomayor
attended Princeton, from which she graduated summa cum laude, and Yale Law
School, where she was an editor of the law review.
Her legal experience is impressive and wide-ranging. She spent five years as a
prosecutor in the Manhattan district attorney’s office and was a partner in a
commercial litigation firm. She has been a federal judge for 16 years, serving
on both a district court, where she presided over trials, and an appellate
court. As a member of the New York-based United States Court of Appeals for the
Second Circuit, she is known for being smart, extraordinarily well prepared and
In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama
has said he is looking for in a justice. She has listened attentively to, and
often ruled in favor of, people who have been discriminated against, defendants
and other groups that are increasingly getting short shrift in the federal
courts. She has shown little patience for the sort of procedural bars that
conservative judges have been using to close the courthouse door on people whose
rights have been violated.
Conservative activists have already begun trying to paint Judge Sotomayor as a
liberal ideologue, but her carefully reasoned, fact-based decisions indicate
otherwise. In many ways, her approach to the law is similar to that of Justice
David Souter, whose seat she would take.
The Senate will have to carefully scrutinize Judge Sotomayor’s record on and off
the bench, as it must for anyone seeking to join the court. If no big surprises
turn up, it is not clear that Senate Republicans will expend much effort trying
to block this nomination. Apart from her qualifications, they may decide that in
light of their desire to win over Latino voters — and their low chance of
winning a confirmation battle, given the Democrats’ big Senate majority — it is
not worth the fight.
If Judge Sotomayor joins the court, it will be a special point of pride for
Hispanic-Americans — as it was for Jews, blacks and women before them to see one
of their own take a seat on the highest tribunal in the land. It will also bring
the paltry number of female justices back to two. And as Democratic Party
strategists have no doubt calculated, the selection could give Mr. Obama and his
party a boost with a key voting group.
Judge Sotomayor, though, is more than just a distinguished member of two
underrepresented groups. She is an accomplished lawyer and judge, who could
become an extraordinary Supreme Court justice.
The New Justice, NYT,
Sotomayor’s Rulings Are Exhaustive but Often Narrow
May 27, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Judge Sonia Sotomayor’s judicial opinions are marked by
diligence, depth and unflashy competence. If they are not always a pleasure to
read, they are usually models of modern judicial craftsmanship, which prizes
careful attention to the facts in the record and a methodical application of
layers of legal principles.
Judge Sotomayor, whom President Obama announced Tuesday as his choice for the
Supreme Court, has issued no major decisions concerning abortion, the death
penalty, gay rights or national security. In cases involving criminal
defendants, employment discrimination and free speech, her rulings are more
liberal than not.
But they reveal no larger vision, seldom appeal to history and consistently
avoid quotable language. Judge Sotomayor’s decisions are, instead, almost always
technical, incremental and exhaustive, considering all of the relevant
precedents and supporting even completely uncontroversial propositions with
All of which makes her remarkably cursory treatment last year of an employment
discrimination case brought by firefighters in New Haven so baffling. The
unsigned decision by Judge Sotomayor and two other judges, which affirmed the
dismissal of the claims from 18 white firefighters, one of them Hispanic,
contained a single paragraph of reasoning.
The brief decision in the case, which bristles with interesting and important
legal questions about how the government may take account of race in employment,
will probably attract more questions at her Supreme Court confirmation hearings
than any of the many hundreds of much more deeply considered decisions she has
Judge Sotomayor’s current court, the United States Court of Appeals for the
Second Circuit, in New York, is a collegial one. But Judge Jose A. Cabranes,
writing for himself and five other judges, used unusually tough language in
dissenting from the full court’s later refusal to rehear the firefighters’ case.
Judge Cabranes said the panel’s opinion “contains no reference whatsoever to the
constitutional claims at the core of this case” and added that “this perfunctory
disposition rests uneasily with the weighty issues presented by this appeal.”
That assessment, which was directed at the work of all three judges on the
panel, may have carried extra weight with Judge Sotomayor. Judge Cabranes was a
mentor to her, and he administered the judicial oath to her twice — in 1992,
when she joined the Federal District Court in Manhattan, and again in 1998, when
she was elevated to the Second Circuit.
The case, Ricci v. DeStefano, is now before the Supreme Court. In the next month
or so, that court will render an unusually high-profile judgment on the work of
a judge who hopes to join it. Based on the questioning at the argument in the
case last month, the majority’s assessment is likely to be unflattering.
In an interview shortly before she joined the district court in 1992, Ms.
Sotomayor spoke about what awaited her, saying that “95 percent of the cases
before most judges are fairly mundane.”
“I’m not going to be able to spend much time on lofty ideals,” she said. “The
cases that shake the world don’t come along every day. But the world of the
litigants is shaken by the existence of their case, and I don’t lose sight of
Judge Sotomayor’s six years on the trial court and more than a decade on the
Second Circuit probably confirmed those intuitions, in part because of the
idiosyncratic dockets of the federal courts in New York. They hear many
important cases involving business, securities, employment, white-collar crime
and immigration. But they do not regularly confront the great issues of the day.
One exception is on the horizon. The full Second Circuit, including Judge
Sotomayor, recently reheard the case of Maher Arar, a Canadian who contends that
American officials sent him to Syria in 2002 to be tortured. A divided panel of
the court had dismissed Mr. Arar’s case. The decision from the full court should
provide clues about Judge Sotomayor’s views concerning how far the government
may go in its efforts to combat terrorism.
Thomas C. Goldstein, a lawyer who argues frequently before the Supreme Court and
founded Scotusblog, a Web site that covers the court, said there could be no
doubt about Judge Sotomayor’s intellectual capacity.
“She’s got the horses, for sure,” Mr. Goldstein said.
Nor, he added, was there any question of her fundamental orientation, based on a
review of her decisions. “From the outcomes,” Mr. Goldstein said, “she’s
certainly on the left.”
Judge Sotomayor’s rulings have sometimes anticipated decisions of the Supreme
Court. In 1999, for instance, she refused to suppress crack cocaine found by
police officers who were executing a warrant that had been vacated 17 months
before but never deleted from a police database.
That kind of error, Judge Sotomayor said, did not require suppression. The
Supreme Court came to the same conclusion in January, a decade after Judge
On other occasions, Judge Sotomayor has been content to wait for definitive
guidance from the Supreme Court. In January, she joined an unsigned decision
rejecting a Second Amendment challenge to a New York law prohibiting the
possession of chukka sticks, a weapon used in martial arts made up of two sticks
joined by a rope or chain.
The decision reasoned that the Supreme Court’s ruling last year establishing an
individual right to bear arms, District of Columbia v. Heller, had not yet been
applied to the states. The Second Circuit’s decision may well reach the Supreme
In a 2004 dissent, Judge Sotomayor seemed to be in agreement with Justice Ruth
Bader Ginsburg’s observation in a recent interview with USA Today that female
judges can be more sensitive to claims that strip searches of young girls are
The majority opinion in the 2004 case, by two male judges, upheld the legality
of some strip searches of girls held at juvenile detention centers in
In her dissent, Judge Sotomayor wrote that the majority had not been attentive
enough 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.”
That was in line with Justice Ginsburg’s questioning from the bench last month
in Safford Unified School District v. Redding, which concerned what she called a
“humiliating” strip search of a 13-year-old middle school student by school
officials in Arizona.
In her dissent, Judge Sotomayor also emphasized how “embarrassing and
humiliating” the searches of the girls in Connecticut had been. “The officials
inspected the girls’ naked bodies front and back, and had them lift their
breasts and spread out folds of fat,” Judge Sotomayor wrote.
In a 2002 dissent, Judge Sotomayor said she would have ruled that the First
Amendment has a role to play in protecting anonymous racist communications made
by a police officer. Saying she found the communications “patently offensive,
hateful and insulting,” Judge Sotomayor nonetheless would have allowed the
officer’s case against the police department that fired him to proceed to trial.
She said the majority should not “gloss over three decades of jurisprudence and
the centrality of First Amendment freedoms in our lives because it is confronted
with speech it does not like.”
Sotomayor’s Rulings Are
Exhaustive but Often Narrow, NYT, 27.5.2009,
Woman in the News
Sotomayor, a Trailblazer and a Dreamer
May 27, 2009
The New York Times
By SHERYL GAY STOLBERG
WASHINGTON — She was “a child with dreams,” as she once said, the little girl
who learned at 8 that she had diabetes, who lost her father when she was 9, who
devoured Nancy Drew books and spent Saturday nights playing bingo, marking the
cards with chickpeas, in the squat red brick housing projects of the East Bronx.
She was the history major and Puerto Rican student activist at Princeton who
spent her first year at that bastion of the Ivy League “too intimidated to ask
questions.” She was the tough-minded New York City prosecutor, and later the
corporate lawyer with the dazzling international clients. She was the federal
judge who “saved baseball” by siding with the players’ union during a strike.
Now Sonia Sotomayor — a self-described “Nuyorican” whose mother, a nurse, and
father, a factory worker, left Puerto Rico during World War II — is President
Obama’s choice for the Supreme Court, with a chance to make history as only the
third woman and first Hispanic to sit on the highest court in the land. Her
up-by-the-bootstraps tale, an only-in-America story that in many ways mirrors
Mr. Obama’s own, is one reason for her selection, and it is the animating
characteristic of her approach to both life and the law.
“Personal experiences affect the facts that judges choose to see,” Judge
Sotomayor (pronounced so-toe-my-OR) said in 2001, in a lecture titled “A Latina
Judge’s Voice.” “My hope is that I will take the good from my experiences and
extrapolate them further into areas with which I am unfamiliar. I simply do not
know exactly what that difference will be in my judging. But I accept there will
be some based on my gender and my Latina heritage.”
From her days going to the movies with cousins to see Cantinflas, a Mexican
comedian whom she once called the “Abbott and Costello of my generation,” to her
current life in the rarefied world of the United States Court of Appeals for the
Second Circuit, Judge Sotomayor, 54, has traveled what Mr. Obama called “an
In her 2001 address, she spoke longingly of the “sound of merengue at all our
family parties” and the Puerto Rican delicacies — patitas de cerdo con garbanzos
(pigs’ feet with beans) and la lengua y orejas de cuchifrito (pigs’ tongue and
ears) — that appealed to the “particularly adventurous taste buds” that she
called “a very special part of my being Latina.”
Today, Judge Sotomayor’s culinary tastes range from tuna fish and cottage cheese
for lunch with clerks in her chambers, to her standard order at the Blue Ribbon
Bakery: smoked sturgeon on toast, with Dijon mustard, onions and capers. She
works out three times a week, putting in three miles on the treadmill in the
court’s gym. Divorced and with no children, she enjoys the ballet and theater
and lives in a condominium in Greenwich Village — both a subway ride and a world
away from the housing projects where she grew up.
Yet a few things have not changed: her feeling of herself as “not completely a
part of the worlds I inhabit,” as she said in one speech; her drive and
ambition; and her willingness to speak up about her own identity as a Latina and
a woman. In many ways, she is walking through a door she pushed open herself. On
the bench, Judge Sotomayor may be a careful deliberator, but off it she has been
a tireless advocate for Latinos.
In 1976, she wrote her senior thesis at Princeton on Luis Muñoz Marín, the first
democratically elected governor of Puerto Rico, and dedicated it in part “to the
people of my island — for the rich history that is mine.” She has lectured at
the University of Puerto Rico School of Law. In 2001, she was a speaker at a
Princeton-sponsored conference titled “Puerto Ricans: Second-Class Citizens in
In describing his criteria for a Supreme Court pick, Mr. Obama said he was
looking for empathy — a word that conservatives, who are already attacking Judge
Sotomayor, have described as code for an activist judge with liberal views who
will impose her own agenda on the law. Her critics also raise questions about
her judicial temperament, saying she can be abrupt and impatient on the bench.
But Judge Sotomayor’s friends say she is simply someone who will bring the
“common touch” that the president has said he prizes to her understanding of the
“I think she’s compassionate and empathetic, and I think she is going to really
listen to people who are alleging that they have been victimized in some way,”
said Robert H. Klonoff, dean of the Lewis & Clark Law School in Portland, Ore.,
who attended Yale Law with Judge Sotomayor and considers her a friend. Dean
Klonoff, who last saw the judge in her New York chambers the day after Mr.
Obama’s election, compares her to Thurgood Marshall, the Supreme Court’s first
black justice, for the perspective he says she would bring to the court.
“She had such a different path,” he said. “There were so many people that had
Roman numerals after their names and long histories of family members who had
gone to Yale, and here was this woman who was from the projects, not hiding her
views at all, just totally outspoken. She’s one of those where, even at a school
with great people, I knew that she was going to go on and do amazing things.”
Childhood in the East Bronx
There was something of a pioneer spirit among the Puerto Ricans who settled into
the East Bronx after braving tenements farther south or poverty back on the
island. To settle into the Bronxdale Houses, as Sonia Sotomayor’s family
ultimately did in the 1960s, was to find a haven of sorts, according to people
who lived there then.
“Here was a paradise,” said Ricardo Velez, who was among the earliest tenants
when he moved to his apartment in 1956. “It was beautiful.”
This was the place where Sonia’s parents, Celina and Juan Sotomayor, intended to
raise their children — Ms. Sotomayor and her brother, Juan, who is now a doctor
in Syracuse. The couple met and married during World War II after Celina was
discharged from the Women’s Army Corps, the WACS, the outlet for women of her
generation to give to the war effort. Celina Sotomayor had left Puerto Rico at
17 to sign up, shipping off to Georgia for her training with no relatives in the
mainland United States.
While her husband worked at a tool-and-die factory, Celina Sotomayor — by all
accounts the driving force in her daughter’s life — went on to become a
telephone operator at Prospect Hospital, a small private hospital in the South
Bronx, and later received her practical nurse’s license. The family’s life was
upended when Sonia’s father died at 42, in part from heart complications that
had kept him out of the Army. Celina Sotomayor, a widow with two young children
and no savings, began working six days a week.
Her daughter retreated into books. Sonia Sotomayor loved the Nancy Drew
mysteries, she once said, and yearned to be a police detective. But the doctor
who had diagnosed her diabetes told her that she would not be able to do that
kind of work. (The White House says Judge Sotomayor’s diabetes, a disease that
can ultimately cause blindness, heart disease and kidney ailments, has been
under control through insulin injections and careful monitoring for decades and
does not affect her work.)
A ‘Perry Mason’ Moment
She also spent hours watching “Perry Mason” on television. An episode that ended
with the camera fixed on the judge helped her set a new career goal, she told
The Associated Press in 1998. “I realized that the judge was the most important
player in the room,” she said at the time.
The Bronxdale Houses were still ethnically mixed when the Sotomayors lived
there, and neighbors say it felt mostly safe. But Judge Sotomayor recalled in a
1998 interview with The A.P. that temptation was lurking nearby.
“There were working poor in the projects,” she said. “There were poor poor in
the projects. There were sick poor in the projects. There were addicts and
non-addicts and all sorts of people, every one of them with problems, and each
group with a different response, different methods of survival, different
reactions to the adversity they were facing. And you saw kids making choices.”
Parents made choices, too. For Celina Sotomayor, education was the highest
priority; she bought her children an Encyclopaedia Britannica, a novelty in the
projects. “She was famous for the encyclopedia,” said Milagros Baez O’Toole, a
Roman Catholic schools of that era were embraced by many working-class Puerto
Rican parents who saw the public schools as too rowdy and dangerous. The
Sotomayor family, which is Catholic, was among them. Judge Sotomayor attended
Cardinal Spellman High School in the Northeast Bronx, which opened in 1959 and
earned a reputation as a school for high achievers. She graduated as
valedictorian in 1972.
Jeri Faulkner, who was a freshman when Judge Sotomayor was a senior, remembers
black students sat at one table in the cafeteria, and Latino students at
another. But Ms. Faulkner, who is now the school’s dean of students, said Ms.
Sotomayor inspired her.
“As a freshman, when you’re looking at seniors, you’re a little awestruck with
them,” Ms. Faulkner said. “She was smart. She always had time for you if you
needed to speak to her. She didn’t belittle your questions. She wasn’t aloof.
She was one of us.”
When Ms. Sotomayor entered Cardinal Spellman in the late 1960s, boys and girls
were rigidly segregated into opposing wings of the school, with a nun stationed
at a central point to enforce gender separation. But this “co-institutional”
arrangement was abandoned while she was there, and the sexes mixed freely by the
time she graduated. Ms. Sotomayor had a sweetheart, Kevin E. Noonan. “She was
irrepressible, very popular, very bright, very dynamic,” said one classmate who
asked not to be named. “She wasn’t overbearing about it, but you knew she was in
By then, the Sotomayor family had moved to a new apartment in Co-op City — a
clear step up from the projects. The family’s Co-op City kitchen table became a
regular gathering spot for food and conversation for Sonia’s classmates and
debate team buddies.
“Sonia was very much the ruler of the kitchen-table debate,” said Kenneth K.
Moy, the son of Chinese immigrants who was a year ahead of her at both Spellman
and later Princeton. “She was very analytical, even back then. It was clear to
people who knew her that if she wasn’t going to be a lawyer, she was going to be
in public life somehow.”
Mr. Moy said Ms. Sotomayor’s crowd was a diverse mix of students that included
immigrants from struggling families and others from well-to-do parts of
Westchester County. They endlessly hashed over not only school gossip, but also
Vietnam — where their friends were serving in a war that had divided the school
— as well as the country, race relations and social justice, he said.
Sonia’s mother, Celina, would return home after long hours working as a nurse
and feed the crowd of teenagers rice and beans and sometimes pork chops. “I
can’t tell you how many times I said, ‘Is there another pork chop?’ — and there
was,” said Mr. Moy, now a lawyer in Oakland, Calif. Later, he urged his friend
to follow him to Princeton. But he was candid, he said, about what she would
face there as a Puerto Rican from a modest background.
“I told her I don’t want you to come here with any illusions,” Mr. Moy recalled.
“Social isolation is going to be a part of your experience, and you have to have
the strength of character to get through intact.”
Adjusting to Princeton
When Ms. Sotomayor arrived at Princeton in the fall of 1972, she was one of the
only Latinos there: there were no professors, no administrators, and only a
double-digit number of students. Princeton women were sharply outnumbered as
well; the first ones had been admitted only a few years earlier, and some alumni
had protested their increasing ranks. (Justice Samuel A. Alito Jr., who
graduated just a few months before Ms. Sotomayor arrived, belonged to one of the
groups that protested.)
Ms. Sotomayor was terrified: she barely raised her hand in class initially, and
years later, she confessed to a friend at Yale Law School that she could “barely
write” when she arrived at Princeton. So she barricaded herself in the library,
earning a reputation as a grind (her diligence would pay off with her eventual
election to Phi Beta Kappa). She spent her summers inhaling children’s classics,
grammar books and literature that many Princeton peers had already conquered at
Choate or Exeter.
She also readily accepted help. When Ms. Sotomayor arrived in Nancy Weiss
Malkiel’s history class in the spring of her freshman year, for example, she
seemed unprepared, Ms. Malkiel recalled in an e-mail message. But Ms. Malkiel
tutored her in how to read sources and write analytically, and by late in the
semester, Ms. Sotomayor was flourishing.
By her junior year or so, “I don’t remember her being shy or reticent about much
of anything,” said Jerry Cox, a classmate.
Ms. Sotomayor also became involved in campus politics. After heavy lobbying, she
joined Acción Puertorriqueña, an organization working for more opportunity for
Puerto Rican students.
“Sonia had to be persuaded to join us,” said Margarita Rosa, a friend from high
school. “We were a ragtag-looking bunch, and she was always methodical in her
Soon Ms. Sotomayor was co-chairwoman of the organization, which filed a formal
letter of complaint with the Department of Health, Education and Welfare,
accusing the university of discrimination in hiring and admission.
“The facts imply and reflect a total absence of regard, concern and respect for
an entire people and their culture,” she wrote in an opinion article in The
Daily Princetonian. “In effect, they represent an effort — a successful effort
so far — to relegate an important cultural sector of the population to
In her student thesis, which she dedicated to nine friends and family members,
Ms. Sotomayor wrote about Puerto Rico’s long struggle for political and economic
self-determination. While Muñoz Marín created great hope among Puerto Ricans,
“the island has continued to be plagued by unemployment, absentee ownership and
dependency on mainland revenues,” she concluded. When Ms. Sotomayor graduated,
she was awarded the Pyne Prize, the university’s highest undergraduate award,
presented for a combination of strong grades and extracurricular work. Even
before she won, everyone on campus seemed to know who she was. “I certainly
admired her from afar,” said Randall Kennedy, now a professor at Harvard Law
School and along with Ms. Sotomayor, a member of Princeton’s Board of Trustees.
Ms. Sotomayor went straight to Yale Law School, where she researched and wrote
her way onto the law review by analyzing the arcane constitutional issues that
would determine whether Puerto Rico would be allowed to maintain access to its
seabed if it became a state.
Even when she described positions with which she disagreed, “she was scrupulous
about giving the strongest form,” said Stephen L. Carter, who edited her
submission and said Ms. Sotomayor was just as tolerant a debater in class.
Her submission was “inspired by deep social concern about having the poorest
area in American jurisdiction survive economically,” said Edward Rubin, another
editor. “It was very scholarly and balanced even though it was inspired by
social concern.” Classmates remember just how hard she worked on it, polishing
and repolishing it again.
At Princeton, Ms. Sotomayor had volunteered with Latino patients at a state
psychiatric hospital in Trenton, and now she showed a similar desire to pull
away from her elite environment. “She felt an affinity with the African-American
janitor, the workers, people in the cafeteria,” recalled Rudolph Aragon, a
classmate and who headed the Latin, Asian and Native American association with
Ms. Sotomayor. “There were so few minority students that we had to combine
forces,” he said.
Her closest friends at the school were all outsiders: Mr. Aragon, who is
Mexican-American, along with three other students — a fellow Puerto Rican, a
Mohawk Indian and an African-American, he recalled.
After hours they would retreat to one another’s apartments for baseball games —
Ms. Sotomayor watched ecstatically as Reggie Jackson delivered the 1977 World
Series to the Yankees — or to a local club where the law students danced
alongside the locals. Ms. Sotomayor was still a grind, her friends said, but she
also smoked, drank beer and danced a mean salsa.
She somehow seemed older than her classmates, several said — perhaps because of
her difficult childhood, or maybe because she was already married. (She and Mr.
Noonan, who would become a biologist and later a biotech patent lawyer, wed in
the summer of 1976, but divorced seven years later.) And she knew exactly what
she wanted after graduation: to be a litigator. She was “tough, clear, very
quick on her feet,” said Martha Minow, now a Harvard Law School professor who
advised the White House on the selection.
An Imposing Prosecutor
She would soon get plenty of practice. In 1979, Robert M. Morgenthau, the
Manhattan district attorney, hired Ms. Sotomayor on the recommendation of José
A. Cabranes, then a teacher at Yale Law School and now a federal appeals court
judge. She became a young prosecutor in a city struggling with a drug- related
crime wave, joining a trial unit that handled everything from misdemeanors to
“Some of the judges like to push around young assistants and get them to dispose
of cases,” Mr. Morgenthau recalled. “Well, no one pushed around Sonia Sotomayor;
she stood up to the judges, in an appropriate way.”
In her fifth year in the office, she was interviewed for The New York Times
Magazine about the prosecutors working for Mr. Morgenthau. She was described as
an imposing woman of 29 who smoked incessantly, and spoke of how she had coped
in a job that some liberal friends disapproved of.
“I had more problems during my first year in the office with the low-grade
crimes — the shoplifting, the prostitution, the minor assault cases,” she said.
“In large measure, in those cases you were dealing with socioeconomic crimes,
crimes that could be the product of the environment and of poverty.
“Once I started doing felonies, it became less hard. No matter how liberal I am,
I’m still outraged by crimes of violence. Regardless of whether I can sympathize
with the causes that lead these individuals to do these crimes, the effects are
In 1984, Ms. Sotomayor left the district attorney’s office and joined Pavia &
Harcourt, a boutique commercial law firm in Manhattan.
“We had an opening for a litigator, and her résumé was perfect,” said George M.
Pavia, the managing partner who hired her. “She’s an excellent lawyer, a careful
preparer of cases, liberal, but not doctrinaire, not wild-eyed.”
A large part of Ms. Sotomayor’s work was fighting the counterfeiters who copied
products of Fendi, the luxury goods company, and its well-known “double F” logo.
Sometimes, that meant suing counterfeiters to stop them from importing fake
At other times, it involved more derring-do: if the firm had a tip from the
United States Customs Office about a suspicious shipment, Ms. Sotomayor would
often be involved in the risky maneuver of going to the warehouse to have the
merchandise seized. One incident that figures largely in firm lore was a seizure
in Chinatown, where the counterfeiters ran away, and Ms. Sotomayor got on a
motorcycle and gave chase.
In July 1987, Mario M. Cuomo, then the governor, appointed Ms. Sotomayor to the
board of the State of New York Mortgage Agency, which helps low-income people
get loans to buy homes. In 1992, when she left the unpaid board position, it
passed a resolution honoring her for consistently defending the rights of the
disadvantaged to secure affordable housing” and serving as the conscience of the
board concerning “the negative effects of gentrification.”
A Docket of Notable Cases
In 1991, the first President George Bush nominated Ms. Sotomayor to be a federal
district judge in the Southern District of New York. But she was informally
selected by Senator Daniel Patrick Moynihan, Democrat of New York, who shared
her working-class and parochial school roots and who was convinced, former aides
said, that Ms. Sotomayor would become the first Hispanic Supreme Court justice.
Leaving private practice for public service meant that she would never be as
wealthy as many of her peers. Financial disclosure forms that Ms. Sotomayor
filed in 2007 show that her primary asset is her Greenwich Village condo, which
she bought in 1998 with the help of two mortgages totaling $324,000 from Chase
Manhattan Bank. Her last reported savings account balance was between $50,000
and $100,000, and she held no stocks or other significant investments. In
addition to her judicial salary, she earned small sums for teaching at the law
schools at New York University and Columbia University.
But her confirmation, in August 1992, made her the first Hispanic federal judge
in the state. She joined a federal district courthouse in New York City whose
docket is rich with everything from so-called drug mule cases to white-collar
crimes and securities litigation.
She had several notable cases as a district judge on religious liberties. In
1993, she struck down as unconstitutional a White Plains law that prohibited the
displaying of a menorah in a park. In 1994, she ordered New York prison
officials to allow inmates to wear beads of the Santeria religion under their
belts, even though prison officials said the beads were gang symbols.
Other notable cases included a 1995 ruling in which she ordered the government
to make public a photocopy of a torn-up note found in the briefcase of a former
White House counsel, Vincent Foster, who committed suicide. And in 1998, she
ruled that homeless people working for the Grand Central Partnership, a business
consortium, had to be paid the minimum wage.
But Judge Sotomayor’s most celebrated case came in 1995, when she ended a
prolonged baseball strike by ruling forcefully against the baseball team owners
and in favor of the ballplayers, resulting in a quick resumption of play. For a
brief period, she was widely celebrated, at least in those cities with
major-league teams, as the savior of baseball.
In 1997, President Bill Clinton nominated her to become a judge on the Court of
Appeals for the Second Circuit, in New York. In filling out her Senate Judiciary
Committee questionnaire, Judge Sotomayor seemed to evoke the same concerns for
the real-world impact of rulings that Mr. Obama has said he is seeking.
“Judges must be extraordinarily sensitive to the impact of their decisions and
function within, and respectful of, the Constitution,” she wrote. She arrived at
her hearing with a New York construction contractor, Peter White, whom she
introduced as “my fiancé” and who was photographed helping her on with her robe
after she was sworn in as an appellate court judge. The relationship ended not
long after that, roughly 10 years ago, according to a friend.
It took the Senate more than a year to confirm her. Republicans delayed a vote,
drawing an accusation from Senator Patrick J. Leahy, a Vermont Democrat who is
now the Senate Judiciary Committee chairman, that they feared that Mr. Clinton
would try to elevate her to the Supreme Court.
But Alfonse M. D’Amato, then a Republican senator from New York, eventually
helped push through a vote, and she was confirmed 67 to 29 in October 1998.
Among those voting in her favor was Senator Orrin Hatch of Utah, who remains a
leading Republican on the Senate Judiciary Committee.
Over the next decade, Judge Sotomayor would hear appeals in more than 3,000
cases, writing about 380 majority opinions. The Supreme Court reviewed five of
those, reversing three and affirming two, although it rejected her reasoning
while accepting the outcome in one of those it upheld.
A No-Nonsense Reputation
She would develop a reputation for asking tough questions at oral arguments and
for being sometimes brusque and curt with lawyers who were not prepared to
The 2009 edition of the Almanac of the Federal Judiciary, which includes
anonymous comments evaluating judges by lawyers who appear before them, presents
a mixed portrait of Judge Sotomayor. Most of the unnamed lawyers interviewed
said she had good legal ability and wrote good opinions. But several also spoke
very negatively of her manner from the bench, saying she could be abusive of
lawyers appearing before her and using words like “bully,” “nasty” and “a
But one former clerk defended her style.
“Personality- and style-wise, she is a dynamo,” said Lisa Zornberg, who clerked
for her in 1997-98 and is now an assistant United States attorney in the
Southern District of New York. Lawyers “who come before her know she always
shows up on her game” and “doesn’t tolerate unpreparedness, nor should she.”
Judge Sotomayor has had several rulings that indicate a generally more liberal
judicial philosophy than a majority of justices on the current Supreme Court,
leading some conservatives to label her a “judicial activist.”
In 2000, for example, she wrote an opinion that would have allowed a man to sue
a government contractor he accused of violating his constitutional rights. In
2007, she wrote an opinion interpreting an environmental law in a way that would
favor more stringent protections, even if it cost power plant owners more money.
The Supreme Court reversed both decisions.
The ruling by Judge Sotomayor that has attracted the most attention was a 2008
case upholding an affirmative action program at the New Haven Fire Department. A
group of white firefighters sued because the city threw out the results of a
test for promotions after few minority firefighters scored well on it. The
Supreme Court is now reviewing that result.
Several of Judge Sotomayor’s appeals court clerks described her as a rigorous
boss. Her clerks’ offices surround her own office and are within earshot, and
she calls out to them when she has questions. She sometimes asks for the full
records of trial transcripts and motions for a case that was on appeal,
something her experience as a district judge has made her more interested in
than some other judges.
Judge Sotomayor has also developed a reputation for treating her clerks as a
family — taking a strong interest in their personal lives and careers, attending
their weddings, keeping framed pictures of her former clerks and later, their
children, in her office, and keeping in touch with them as a friend and mentor.
She has told friends that one of her greatest regrets is that she herself was
never a law clerk.
James R. Levine, a New York lawyer who clerked for Judge Sotomayor in 2001-2,
recalled that during his interview with her as a law student, the first question
she asked was about himself and his family, while every other judge with whom he
interviewed had first asked about issues like the topic of his law review note.
The interview would turn intellectually rigorous, he said, but first she wanted
to get to know him as a person.
Staying True to Her Roots
She has also tried to stay down to earth, friends say. Melissa Murray, who
worked for the judge from 2003-4 and is now a law professor at the University of
California, Berkeley, recalled going to a Yankees game with Judge Sotomayor. The
judge, a Yankees fan, bought tickets in the bleachers, which Ms. Murray said the
judge preferred as a more “authentic experience,” and she appeared to be known
to several in the crowd.
“We were on the way to the bleachers and people were, like, ‘Judge! Judge!’ ”
Ms. Murray recalled. “She is really well known in the South Bronx and kind of a
role model in the community.”
Ms. Rosa, the friend who also went from a low-income childhood to Princeton and
law school, said that the experiences that someone like Judge Sotomayor
accumulated in her rise from the housing projects of the Bronx to the threshold
of the Supreme Court would leave a vivid understanding of how the world works.
“We came up in a period of time with a sense of conscience about social
justice,” Ms. Rosa said. “It grounded us in a set of values that told us our
lives could be about something more than ourselves and the size of our bank
account. That is a lesson many of us carry.”
In her 2001 speech, Judge Sotomayor reflected on how she applies that lesson.
“Each day on the bench I learn something new about the judicial process and
about being a professional Latina woman in a world that sometimes looks at me
with suspicion,” she said.
“I can and do aspire to be greater than the sum total of my experiences but I
accept my limitations,” Judge Sotomayor added. “I willingly accept that we who
judge must not deny the differences resulting from experience and heritage, but
attempt, as the Supreme Court suggests, continuously to judge when those
opinions, sympathies and prejudices are appropriate.”
Contributors to this article include Jo Becker, David Gonzalez, Jodi Kantor,
Serge F. Kovaleski, William K. Rashbaum, Benjamin Weiser, Manny Fernandez, Karen
Zraick, Colin Moynihan, Richard Pérez-Peña and Michael Powell from New York; and
Charlie Savage, Scott Shane and Neil A. Lewis from Washington. Kitty Bennett,
Itai Maytal and Barclay Walsh contributed research.
Sotomayor, a Trailblazer
and a Dreamer, NYT, 27.5.2009,
Justices Ease Rules on Questioning
May 27, 2009
The New York Times
By DAVID STOUT
WASHINGTON — The Supreme Court on Tuesday made it easier for the police and
prosecutors to question suspects, lifting some restrictions on when defendants
can be interrogated without their lawyers present.
In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case,
which forbade the police from interrogating a defendant once he invoked his
right to counsel at an arraignment or a similar proceeding.
That 1986 ruling has not only proved “unworkable,” Justice Antonin Scalia wrote
for the majority, but its “marginal benefits are dwarfed by its substantial
costs” in that some guilty defendants go free. Justice Scalia was joined by
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence
Thomas and Samuel A. Alito Jr.
In an angry dissent, Justice John Paul Stevens, who wrote the 1986 decision,
said that contrary to the majority’s assertion, that decision protected “a
fundamental right that the court now dishonors.”
The ruling Tuesday was in the case of Jesse Montejo, who was sentenced to death
for the murder and robbery of Louis Ferrari in September 2002. Mr. Montejo was
arrested a day after Mr. Ferrari was found dead in his home in Slidell, La.
Suspicion focused on Mr. Montejo because he was known to associate with a
disgruntled former employee of Mr. Ferrari’s dry-cleaning business.
Mr. Montejo was read his Miranda rights, arising from the landmark 1966 Supreme
Court ruling that a defendant must be told of his right to remain silent and to
have a lawyer present virtually from the moment he is taken into custody. Under
questioning, Mr. Montejo repeatedly changed his story, at first blaming the
former employee, then admitting that he had shot the victim during a botched
At a preliminary hearing, a judge ordered that a public defender be appointed.
The timing is in dispute, but at some point Mr. Montejo was read his Miranda
rights again and agreed to accompany detectives to locate the murder weapon,
which he had indicated that he had thrown into a lake.
During the trip, he wrote a letter of apology to the victim’s widow, using paper
and pen provided by the detectives. Only upon his return did Mr. Montejo meet
with his lawyer, who was furious that his client had been questioned in his
absence, and was further incensed when the letter was admitted as evidence at
Mr. Montejo’s conviction was upheld by the Louisiana Supreme Court, which
reasoned in part that the protections of the 1986 Michigan case should not apply
to him because, in Louisiana as in many other states, lawyers are assigned
automatically to indigent defendants, removing any question of whether Mr.
Montejo specifically “requested” counsel at his arraignment.
Tuesday’s ruling was not a total defeat for Mr. Montejo, as the majority sent
the case back to the state court, saying he should be allowed to pursue other
grounds on which to have the incriminating letter suppressed. Further, the
justices suggested, the police as well as the defendant gave inconsistent
testimony, and those differences may have to be sorted out by the state court.
The Obama administration, in a stance that disappointed some of its liberal
backers, had argued in favor of overturning the 1986 ruling in the Michigan
case, as had 11 states that told the Supreme Court that that case was no longer
Tuesday’s opinion in Montejo v. Louisiana, No. 07-1529, inspired considerable
emotion, as displayed by Justice Stevens’s reading of his dissent, which was
joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Mr. Montejo’s Sixth Amendment right to legal representation, as well as his
Fifth Amendment protection against self-incrimination, were damaged by the
ruling, Justice Stevens said.
“Such a decision can only diminish the public’s confidence in the reliability
and fairness of our system of justice,” he said.
Justices Ease Rules on
Questioning, NYT, 27.5.2009,
Supreme Court Turns Back Ex-Detainee’s Suit Over Prison Abuses
May 18, 2009
Filed at 11:30 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
WASHINGTON (AP) -- A sharply divided Supreme Court ruled Monday that FBI
Director Robert Mueller and former Attorney General John Ashcroft can't face a
lawsuit from a former Sept. 11 detainee who argued they were responsible for his
restrictive confinement because of his religious beliefs.
The court on Monday overturned a lower court decision that let Javaid Iqbal's
(Ick-ball) lawsuit against the high-ranking officials proceed.
Iqbal is a Pakistani Muslim who spent nearly six months in solitary confinement
in New York in 2002. He had argued that while Ashcroft and Mueller did not
single him out for mistreatment, they were responsible for a policy of confining
detainees in highly restrictive conditions because of their religious beliefs or
But the government argued that there was nothing linking Mueller and Ashcroft to
the abuses that happened to Iqbal at a Brooklyn, N.Y., prison's Administrative
Maximum Special Housing Unit, and the court agreed.
''The complaint does not show or even intimate, that petitioners purposefully
housed detainees in the ADMAX SHU due to their race, religion or national
origin,'' said Justice Anthony Kennedy, who wrote the majority opinion. ''All it
plausibly suggests is that the nation's top law enforcement officers, in the
aftermath of a devastating attack, sought to keep suspected terrorists in the
most secure conditions available until the suspects could be cleared of
The New York-based 2nd U.S. Circuit Court of Appeals had said the lawsuit could
The court's liberal justices -- David Souter, Ruth Bader Ginsburg, Stephen
Breyer and John Paul Stevens -- dissented from the court's opinion.
''There is no principled basis for the majority's disregard of the allegations
linking Ashcroft and Mueller to their subordinates' discrimination,'' Souter
The Supreme Court sent the case back to the lower courts. Iqbal could have a
case against others, Kennedy said.
His ''account of his prison ordeal could, if proved, demonstrate
unconstitutional misconduct by some governmental actors,'' Kennedy said. ''But
the allegations and pleadings with respect to these actors are not before us
Iqbal was arrested at his Long Island home on Nov. 2, 2001, and charged with
nonviolent federal crimes unrelated to terrorism. Two months later, he was moved
to a holding facility in Brooklyn, where he was in solitary confinement for more
than 150 days without a hearing, his lawsuit alleges.
He said he was subjected to physical and verbal abuse, including unnecessary
strip searches. On the day he entered solitary confinement, he says, he was
thrown against a wall, kicked in the stomach, punched in the face and dragged
across a floor by federal prison officers.
He was cleared of any involvement in terrorism and was deported in January 2003
after pleading guilty to fraud and being sentenced to a year and four months in
The appeals court said it recognized the gravity of the situation confronting
government investigators after the 2001 terrorist attacks and agreed that some
forms of government action that otherwise would not be proper are permitted in
But it said most of the rights cited in the lawsuit ''do not vary with
surrounding circumstances, such as the right not to be subjected to needlessly
harsh conditions of confinement, the right to be free from the use of excessive
force and the right not to be subjected to ethnic or religious discrimination.''
A 2003 Justice Department report found ''significant problems'' with the
treatment of post-Sept. 11 detainees at the facility in Brooklyn, including
physical abuse and mistreatment.
The case is Ashcroft and Mueller v. Iqbal, 07-1015.
Supreme Court Turns Back
Ex-Detainee’s Suit Over Prison Abuses, NYT, 18.5.2009,
Court Bars Identity-Theft Law as Tool in Immigration Cases
May 5, 2009
The New York Times
By ADAM LIPTAK and JULIA PRESTON
WASHINGTON — The Supreme Court on Monday rejected a favorite tool of
prosecutors in immigration cases, ruling unanimously that a federal
identity-theft law may not be used against many illegal workers who used false
Social Security numbers to get jobs.
The question in the case was whether workers who use fake identification numbers
to commit some other crimes must know they belong to a real person to be subject
to a two-year sentence extension for “aggravated identity theft.”
The answer, the Supreme Court said, is yes.
Prosecutors had used the threat of that punishment to persuade illegal workers
to plead guilty to lesser charges of document fraud.
“The court’s ruling preserves basic ideals of fairness for some of our society’s
most vulnerable workers,” said Chuck Roth, litigation director at the National
Immigrant Justice Center in Chicago. “An immigrant who uses a false Social
Security number to get a job doesn’t intend to harm anyone, and it makes no
sense to spend our tax dollars to imprison them for two years.”
Justice Samuel A. Alito Jr. said in a concurring opinion that a central flaw in
the interpretation of the law urged by the government was that it made criminal
liability turn on chance. Consider, Justice Alito said, a defendant who chooses
a Social Security number at random.
“If it turns out that the number belongs to a real person,” Justice Alito wrote,
“two years will be added to the defendant’s sentence, but if the defendant is
lucky and the number does not belong to another person, the statute is not
The most sweeping use of the statute was in Iowa, after an immigration raid in
May 2008 at a meatpacking plant in Postville. Nearly 300 unauthorized immigrant
workers from the plant, most of them from Guatemala, pleaded guilty to
document-fraud charges rather than risk being convicted at trial of the
identity-theft charge. In most of those cases, the prosecutors demonstrated only
that the Social Security numbers and immigration documents the workers had
presented were false.
Many of the immigrants served five-month prison sentences and then faced summary
deportation. The Postville cases raised an outcry among immigrant advocates,
because they transformed into federal felonies a common practice by illegal
immigrants of presenting fake Social Security numbers and other documents to
The court’s ruling is unlikely to aid the immigrants in the Postville cases.
Most of them have long since been deported.
Justice Stephen G. Breyer, in his opinion for the court, said the case should be
decided by applying “ordinary English grammar” to the text of the law, which
applies when an offender “knowingly transfers, possesses or uses, without lawful
authority, a means of identification of another person.”
The government had argued that the “knowingly” requirement applied only to the
verbs in question. Justice Breyer rejected that interpretation, saying that “it
seems natural to read the statute’s word ‘knowingly’ as applying to all the
subsequently listed elements of the crime.”
He gave examples from everyday life to support this view. “If we say that
someone knowingly ate a sandwich with cheese,” Justice Breyer wrote, “we
normally assume that the person knew both that he was eating a sandwich and that
it contained cheese.”
Five justices joined all of Justice Breyer’s opinion, and three others —
Justices Alito, Antonin Scalia and Clarence Thomas — concurred in the result and
in some of the reasoning.
The defendant in the case, Flores-Figueroa v. United States, No. 08-108, was
Ignacio Flores-Figueroa, a Mexican citizen who had worked illegally for a steel
plant in Illinois. At first, Mr. Flores-Figueroa used a false name and fake
Social Security number, one that did not happen to match that of a real person.
Six years later, he told his employer that he wanted to be known by his real
name, and he presented forged Social Security and alien registration cards that
bore numbers assigned to real people.
Mr. Flores-Figueroa eventually pleaded guilty to several immigration offenses,
resulting in a 51-month sentence, but he went to trial to contest charges under
the identity-theft law. He was convicted and sentenced to the additional two
years mandated by the law. Monday’s decision reversed that two-year extension.
Kevin K. Russell, a lawyer for Mr. Flores-Figueroa, said his client is in
federal prison in Georgia. After Mr. Flores-Figueroa has served his time, Mr.
Russell said, “I assume the government will try to deport him.”
Nearly 8 million illegal immigrants are working in the United States, the Pew
Hispanic Center in Washington estimates.
Stephen H. Legomsky, a professor of immigration law at Washington University
School of Law in St. Louis, said Monday’s decision would have a major impact on
the strategy of Immigration and Customs Enforcement, making it more difficult
for the agency to press criminal charges against immigrants with no other
offenses but working illegally.
“In the ordinary immigration case, this will no longer be a weapon,” Professor
The Obama administration has said that it will shift the focus of immigration
enforcement to employers who intentionally hire unauthorized immigrants in order
to pay lower wages or otherwise lower costs. But last week the administration
said agents would continue to detain illegal immigrants found in raids.
Adam Liptak reported from Washington, and Julia Preston from New York. David
Stout contributed reporting from Washington.
Identity-Theft Law as Tool in Immigration Cases, NYT, 5.5.2009,
Supreme Court Revives Fine Over Super Bowl Incident
May 4, 2009
Filed at 10:29 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
WASHINGTON (AP) -- The Supreme Court on Monday ordered a federal appeals
court to re-examine its ruling in favor of CBS Corp. in a legal fight over
entertainer Janet Jackson's wardrobe malfunction.
The high court on Monday directed the 3rd U.S. Circuit Court of Appeals in
Philadelphia to consider reinstating the $550,000 fine that the Federal
Communications Commission imposed on CBS over Jackson's breast-baring
performance at the 2004 Super Bowl.
The order follows the high court ruling last week that narrowly upheld the FCC's
policy threatening fines against even one-time uses of curse words on live
Last year, the appeals court threw out the fine against CBS, saying the FCC
strayed from its long-held approach of applying identical standards to words and
images when reviewing complaints of indecency.
The appellate court said the incident lasted nine-sixteenths of one second and
should have been regarded as ''fleeting.'' The FCC previously deviated from its
nearly 30-year practice of fining indecent broadcast programming only when it
was so ''pervasive as to amount to 'shock treatment' for the audience,'' the
The FCC appealed to the Supreme Court. The case had been put off while the
justices dealt with a challenge led by Fox Television against the FCC's policy
on fleeting expletives.
The case is FCC v. CBS Corp., 08-653.
Supreme Court Revives
Fine Over Super Bowl Incident, NYT, 4.4.2009,
A Challenge to Voting Rights
April 29, 2009
The New York Times
The United States has changed a great deal since the Voting Rights Act was
first passed in 1965, but minorities still face significant obstacles in
registering to vote and casting ballots. It would be outrageous overreaching —
the sort of thing Republicans deride as judicial activism — if the Supreme Court
takes away the power of Congress to protect minority voters from harassment and
On Wednesday, the court is scheduled to hear arguments in a case in which a
Texas utility district is challenging Section 5 of the Voting Rights Act, a
significant provision that requires selected jurisdictions across the country to
“preclear” new voting rules with the Justice Department or a federal court.
Congress adopted the preclearance requirement to prevent the adoption of rules
that make it harder for minorities to vote in places that have a history of
doing just that. The utility district argues that Congress is exceeding its
Congress has broad power to protect minority voters. After the Civil War, the
Constitution was amended for the express purpose of authorizing Congress to pass
laws to help bring black Americans up to full citizenship — including
eradicating the obstacles to voting. In light of the direct mandate of the 14th
Amendment and 15th Amendment, it is not surprising that the Supreme Court has
upheld Section 5 on four separate occasions.
Congress reauthorized the Voting Rights Act most recently in 2006, by a vote of
390 to 33 in the House and 98 to 0 in the Senate. Before that, it conducted an
intensive investigation to determine whether the law was still needed. The
record of obstacles to minority voting that it developed is incontrovertible.
Some of the obstacles minority voters face at the ballot box have gotten
significant coverage in the news media. Florida and Ohio made headlines with the
roadblocks they put in the way of voter registration drives that have a strong
record of signing up poor and minority voters. Other assaults on minority voting
rights have attracted little attention. In 2001, the white leaders of
Kilmichael, Miss., tried to cancel an election after black citizens became a
majority. When the town voted — thanks to the Voting Rights Act — it elected its
first black mayor.
The election of the first African-American president last year was an undeniable
sign of racial progress. But even that breakthrough cannot ensure that
legislative districts will not be gerrymandered, voting rolls purged or election
procedures modified at the state and local levels in ways that diminish the
rights of minorities. For that, as Congress wisely recognized, we still need the
Voting Rights Act.
A Challenge to Voting
Rights, NYT, 29.4.2009,
Justices Hear Arguments Over School Strip Search
April 21, 2009
Filed at 11:42 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
WASHINGTON (AP) -- An Arizona teenager's lawyer is telling the Supreme Court
that school officials were out of bounds when they ordered her to remove her
clothes during a search for the equivalent of two Advils.
Savana Redding was 13 years old when Safford Middle School officials searched
her for prescription-strength ibuprofen pills.
The school lawyer is arguing that the search was reasonable and justified
because pills had been found on campus and another student had linked them to
Redding is now 19. Her lawyers say school officials violated the Fourth
Amendment, which prohibits unreasonable searches.
Justices are expected to rule in the case by late June.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's
earlier story is below.
WASHINGTON (AP) -- A 13-year-old girl says she will never be able to forget
the humiliation of school administrators searching her underwear for
prescription-strength ibuprofen pills. Now the Supreme Court will hear arguments
over whether the search went too far.
The Safford, Ariz., Unified School District is appealing a federal appeals court
decision that allows Savana Redding to sue the Safford Middle School officials
who searched her based on the accusation of a fellow student.
School officials argue that the search was reasonable and justified because
pills had been found on campus and another student had linked them to Redding.
But Redding's lawyers say school officials violated the Fourth Amendment, which
prohibits unreasonable searches.
Redding is now a 19-year-old college freshman living in her hometown of Safford
in rural eastern Arizona.
The Supreme Court will also issue opinions Tuesday.
A 1985 Supreme Court decision that dealt with searching a student's purse has
found that school officials need only reasonable suspicions, not probable cause.
But the court also warned against a search that is ''excessively intrusive.''
A schoolmate had accused Redding, then an eighth-grade student, of giving her
pills. The district bans prescription and over-the-counter drugs.
Vice Principal Kerry Wilson took Redding to his office to search her backpack.
When nothing was found, Redding was taken to a nurse's office where she says she
was ordered to take off her shirt and pants. Redding said they then told her to
move her bra to the side and to stretch her underwear waistband, exposing her
breasts and pelvic area. No pills were found.
Redding says school officials did not have reasonable grounds to believe she was
hiding pills in her underwear, and says the pills did not pose a public health
threat serious enough to justify a strip search. School officials say they did
not violate Redding's rights and say courts should defer to school officials'
judgment in situations involving potential drug abuse on school grounds.
A federal magistrate had dismissed the lawsuit Redding and her mother April
brought, and a federal appeals panel agreed that the search didn't violate her
rights. But last July, a full panel of the 9th U.S. Circuit Court of Appeals
found the search was ''an invasion of constitutional rights.''
The court also said Wilson could be found personally liable.
If the court finds the search was unconstitutional, it will have to decide
whether school officials can be held financially liable by determining whether
it should have been clear to them in October 2003 that the search was illegal.
The case is Safford Unified School District v. April Redding, 08-479.
Justices Hear Arguments
Over School Strip Search, NYT, 21.4.2009,http://www.nytimes.com/aponline/2009/04/21/us/politics/AP-US-Scotus-School-Strip-Search.html
Justices Consider Campaign Finance Law
March 25, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — A quirky case about a slashing documentary attacking Hillary
Rodham Clinton would not seem to be the most obvious vehicle for a fundamental
re-examination of the interplay between the First Amendment and campaign finance
But by the end of an exceptionally lively argument at the Supreme Court on
Tuesday, it seemed at least possible that five justices were prepared to
overturn or significantly limit parts of the court’s 2003 decision upholding the
McCain-Feingold campaign finance law, which regulates the role of money in
Several of the court’s more conservative justices reacted with incredulity to a
series of answers from a government lawyer about the scope of Congressional
authority to limit political speech. The lawyer, Malcolm L. Stewart, said
Congress has the power to ban political books, signs and Internet videos, if
they are paid for by corporations and distributed not long before an election.
Mr. Stewart added that there was no difference in principle between the
90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second
Justice Anthony M. Kennedy said the government’s uncompromising position could
have dire consequences for the McCain-Feingold law.
“If we think that the application of this to a 90-minute film is
unconstitutional,” Justice Kennedy said, “then the whole statute should fall
under your view because there’s no distinction between the two?”
Mr. Stewart said the two kinds of communications should rise or fall together,
so long as each satisfied a test set out by the court in a decision in 2007.
That decision said restrictions in the McCain-Feingold law applied only to
communications “susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate.”
“Hillary: The Movie,” a documentary with elements of polemic and advocacy
journalism, was produced by Citizens United, a conservative nonprofit
corporation. It was released during the Democratic presidential primaries last
year, and a lower court said it could not be broadcast within 30 days of those
Justice David H. Souter quoted snippets of the film’s characterization of Mrs.
Clinton, who was running for president and is now secretary of state.
“She is ruthless, cunning, dishonest, do anything for power, will speak
dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not
qualified as commander in chief,” Justice Souter recited.
“I mean,” he concluded, “this sounds to me like campaign advocacy.”
Justice Stephen G. Breyer was more circumspect. “It is not a musical comedy,” he
said of the film.
Other justices pressed Mr. Stewart for a limiting principle to his argument.
Justice Samuel A. Alito Jr. asked, for instance, whether a campaign biography in
book form could be banned. Mr. Stewart said yes, so long as it was paid for with
a corporation’s general treasury money, as opposed to its political action
“That’s pretty incredible,” Justice Alito said.
Justice Alito replaced Justice Sandra Day O’Connor, an author of the 5-to-4
decision upholding the McCain-Feingold law in 2003. Justice Alito is more
skeptical of campaign finance regulation than Justice O’Connor was.
Chief Justice John G. Roberts Jr. asked whether it would make a difference if a
500-page book had a single sentence in it that said “vote for X.” Then he asked
about “a sign held up in Lafayette Park saying vote for so and so.”
If corporate money were used to pay for the book or the sign, Mr. Stewart said,
Congress would have the power to ban them before elections.
Justice Breyer tried to steer the conversation away from speech and toward
“You can’t prohibit all those things,” he said, referring to books, videos and
the like. “What you do is put limitations on the payment for them.”
The McCain-Feingold law of 2002 applies only to broadcast, cable or satellite
transmission of “electioneering communications” paid for by corporations or
labor unions in the 30 days before a presidential primary and in the 60 days
before the general election. That leaves out old technologies, like newspapers,
and new ones, like YouTube; and it includes an exception for broadcast news
reports, commentaries and editorials.
Theodore B. Olson, a lawyer for Citizens United, said the law was inconsistent
in its treatment of corporations. Television networks owned by General Electric
and Disney are not subject to the McCain-Feingold law, Mr. Olson said, but
General Motors is. The Reporters Committee for Freedom of the Press made a
similar point in a brief supporting Citizens United.
If the court were inclined to rule narrowly for Mr. Olson’s side in the case,
Citizens United v. Federal Election Commission, No. 08-205, it could find that
the documentary is not the sort of communication covered by McCain-Feingold law.
Or it could say that that the proposed distribution of the film on a cable
video-on-demand service would not be covered by the law.
But Mr. Stewart’s answers to the justice’s hypothetical questions may have
pushed the court toward a broader ruling.
“If we accept your constitutional argument,” Chief Justice Roberts told Mr.
Stewart, “we’re establishing a precedent that you yourself say would extend to
banning the book.”
Justice Antonin Scalia said he was “a little disoriented.”
“We are dealing with a constitutional provision, are we not, the one that I
remember which said Congress shall make no law abridging the freedom of the
press?” Justice Scalia asked. He was referring, of course, to the First
Campaign Finance Law, NYT, 25.3.2009,
Few Ripples From Supreme Court Ruling on Guns
March 17, 2009
The New York Times
By ADAM LIPTAK
About nine months ago, the Supreme Court breathed new life into the Second
Amendment, ruling for the first time that it protects an individual right to own
guns. Since then, lower federal courts have decided more than 80 cases
interpreting the decision, District of Columbia v. Heller, and it is now
possible to make a preliminary assessment of its impact.
So far, Heller is firing blanks.
The courts have upheld federal laws banning gun ownership by people convicted of
felonies and some misdemeanors, by illegal immigrants and by drug addicts. They
have upheld laws banning machine guns and sawed-off shotguns. They have upheld
laws making it illegal to carry guns near schools or in post offices. And they
have upheld laws concerning concealed and unregistered weapons.
“The Heller case is a landmark decision that has not changed very much at all,”
said Adam Winkler, a law professor at the University of California, Los Angeles,
who keeps a running tally of decisions based on the case. “To date, the federal
courts have not invalidated a single gun control law on the basis of the Second
Amendment since Heller.”
Heller itself struck down parts of the District of Columbia’s gun control law,
the strictest in the nation. The case was brought by law-abiding people who
wanted to keep guns in their homes for self-defense. The cases that have
followed it tend to concern more focused laws and less attractive gun owners.
Harvey C. Jackson IV, for instance, argued that he had a constitutional right to
carry a gun while selling drugs in a dangerous neighborhood in East St. Louis,
Ill. The federal appeals court in Chicago was unimpressed.
“The Constitution does not give anyone the right to be armed while committing a
felony,” Chief Judge Frank H. Easterbrook wrote last month in Mr. Jackson’s
Professor Winkler summarized the impact of Heller in an article to be published
in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change
from Heller is that gun owners have to pay higher legal fees to find out that
There is one arguable exception to this trend. Two judges have struck down a
part of the Adam Walsh Child Protection and Safety Act, named after the murdered
son of John Walsh, the host of the television show “America’s Most Wanted.” The
act says that people accused of child pornography offenses must be prohibited
from possessing guns while they await trial.
That provision may well have been unconstitutional as a matter of due process
even before Heller, as it seems to impose a punishment before conviction. But
two courts have struck down the provision based partly on the fact that a
fundamental constitutional right is at stake.
“A year ago, I might well have taken for granted the authority of Congress to
require that a person charged with a crime be prohibited from possessing a
firearm,” Magistrate Judge James C. Francis IV of the Federal District Court in
Manhattan wrote in December. Heller changed that, he said.
“The right to possess a firearm is constitutionally protected,” Judge Francis
wrote. “There is no basis for categorically depriving persons who are merely
accused of certain crimes of the right to legal possession of a firearm.”
The cases discussed so far all concerned federal laws, and there is no question
that the Second Amendment applies to the federal government. The great open
question after Heller is whether the Second Amendment also applies to the states
or, in the legal jargon, whether the amendment is incorporated against them.
The Supreme Court has said that most but not all of the protections of the Bill
of Rights are incorporated by the Fourteenth Amendment, one of the post-Civil
The consensus among most legal scholars is that incorporation of the Second
Amendment is likely. True, the Supreme Court has said in some past cases that
the Second Amendment applies only to the federal government. But a footnote in
Heller cast doubt on those decisions. For now, lower courts probably have to
follow the older decisions until the Supreme Court says otherwise.
There are cases in the pipeline, notably in the federal appeals courts in
Chicago and San Francisco, that could give the court an opportunity to answer
the question in its next term.
Even if the court applies the amendment to the states, though, little may
change. Most state constitutions already protect an individual right to bear
arms, and federal protection, depending on its form, could well be merely
But some liberal lawyers and law professors sense an opportunity, and they have
urged courts to incorporate the Second Amendment in a novel way, one that might
help liberal arguments for protecting rights not specifically mentioned in the
Constitution. Abortion and gay rights come to mind.
In a supporting brief filed in the Chicago case, lawyers for the Constitutional
Accountability Center, a liberal group, urged the court to bypass the usual way
that amendments are applied to the states, through the Fourteenth Amendment’s
due process clause. Using that clause to guarantee fundamental rights has always
seemed a little curious, as “due process” would seem to protect only fair
procedures and not substance.
Another possibility, and the one urged by the center’s brief, is the Fourteenth
Amendment’s “privileges and immunities” clause, which says that “no state shall
make or enforce any law which shall abridge the privileges and immunities of
citizens of the United States.” The virtues of that clause are it makes sense by
its terms and there is some evidence that its framers specifically wanted it to
apply to allow freed slaves to have guns to defend themselves.
All of this is awfully technical, of course, and it may have no practical
consequences at all.
“My own bet,” said Sanford Levinson, a law professor at the University of Texas,
“is that Heller will more likely than not turn out to be of no significance to
anyone but constitutional theorists.”
Few Ripples From Supreme
Court Ruling on Guns, NYT, 17.3.2009,
Justices, 5-4, Set Limit on Sweep of Voting Law
March 10, 2009
The New York Times
By ADAM LIPTAK
WASHINGTON — Only election districts in which minorities make up at least
half of the voting-age population are entitled to the protections of a part of
the Voting Rights Act that seeks to ensure and preserve minority voting power,
the Supreme Court ruled on Monday.
Officials in North Carolina had argued that the act required them to help
maintain black influence at the voting booth by creating a district that
included about 39 percent of the black voting-age population. The theory was
that the law protected black voters who joined with white “crossover voters” to
elect a candidate of the black voters’ choice. The court rejected that argument
by a 5-to-4 vote.
Congress did not specify what percentage of minority voters in a district would
call for the protections of Section 2 of the Voting Rights Act of 1965 when it
later prohibited what courts have termed “vote dilution.” And the Supreme Court
until now had avoided picking a number.
The district at issue in the case, which the North Carolina General Assembly
created in 2003, was the consequence of an effort to preserve minority voting
power notwithstanding changing demographics and legal concerns about the
district’s shape. North Carolina officials settled on combining parts of two
counties to create a relatively compact district that they said maintained “an
adequate representation of black voters,” which was, in their view, 39 percent.
In rejecting the district, the Supreme Court effectively reduced the number of
voting districts in which the Voting Rights Act will mandate that minorities
play a dominant role. The bright-line 50 percent rule also makes litigation over
the legality of particular districts less likely.
“The decision turns 50 percent into a magic number,” said Richard L. Hasen, who
teaches election law at Loyola Law School in Los Angeles.
Richard H. Pildes, a law professor at New York University whose work the
justices cited many times in the decision Monday, said that current events,
including the fact that both major political parties are led by
African-Americans, had complicated the legal landscape, creating “tremendous
pressure on a statute that was primarily structured for an earlier era in which
blacks were completely excluded from office.”
The decision resolved a question the court had left open in earlier decisions,
and it touched off a sharp debate among the justices about how best to protect
minority voting rights without cementing racially polarized voting.
In dissent, Justice David H. Souter — writing for himself and Justices Stephen
G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — said the upshot of the
decision would be more racial polarization. It will require states “to pack
black voters” into districts in which minorities make up the majority, Justice
Souter said, “contracting the number of districts where racial minorities are
having success in transcending racial divisions.”
Nonetheless, some legal experts said the impact of the decision might be
relatively minor. “How many districts will not be drawn as a result of this
decision?” asked Nathaniel Persily, a law professor at Columbia. “The answer is
Whatever its practical impact, the decision contained important hints about how
the justices will approach the term’s more significant Voting Rights Act case:
one that concerns Section 5 of the act, which requires jurisdictions with a
history of racial discrimination to obtain the federal government’s permission
before changing voting procedures.
Justice Anthony M. Kennedy, who wrote the controlling opinion on Monday and will
almost certainly be in the majority in the next case, signaled that he was alert
to the legacy of racial discrimination and in favor of only incremental steps in
cutting back on the sweep of voting rights protections.
“Racial discrimination and racially polarized voting are not ancient history,”
Justice Kennedy said. But the goal of the Voting Rights Act, he continued, was
to “hasten the waning of racism in American politics” rather than to “entrench
In all, said Heather Gerken, a law professor at Yale, Justice Kennedy’s
statements “bode well for the constitutionality of the Voting Rights Act” in the
case to be argued in April, Northwest Austin Municipal Utility District v.
Holder, No. 08-322.
The district at issue in Monday’s decision, Bartlett v. Strickland, No. 07-689,
violated the North Carolina Constitution, which forbids dividing counties when
drawing legislative districts. County officials sued, and state officials
defended the boundaries by saying the district was required by the Voting Rights
Act. The State Supreme Court ruled that only districts in which minorities made
up 50 percent of voters were covered by the provision in Section 2 of the act,
which protects minority voting power.
Before the 2000 census, the predecessor to the disputed district had a black
voting-age population of about 56 percent. After the census, the population fell
below 50 percent, and concerns were raised about the shape of the old district.
State officials decided to violate the State Constitution in order to comply
with their understanding of the Voting Rights Act, which they contended would be
satisfied with a relatively compact district that included parts of two counties
and a black voting-age population of 39 percent.
The act itself does not answer the question of what percentage of potential
minority voters is required. It requires courts to look at “the totality of the
circumstances” to decide whether some groups “have less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice.”
But the Supreme Court suggested in 1986 that there may be a 50 percent
threshold, and on Monday it made that suggestion into what Justice Kennedy
called “an objective, numerical test” that “draws clean lines for courts and
“Nothing in Section 2 grants special protection to a minority group’s right to
form political coalitions,” said Justice Kennedy, who was joined by Chief
Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “There is a
difference between a racial minority group’s ‘own choice’ and the choice made by
Justice Souter presented data to support his point that the 50 percent line was
arbitrary and counterproductive. In 2004, he wrote, seven of nine North Carolina
State House districts in which blacks made up the majority of the voting age
population had elected black representatives. But so did 11 of 12 additional
districts in which the voting age population was at least 39 percent black.
Justice Clarence Thomas, joined by Justice Antonin Scalia, voted with the
majority but did not adopt Justice Kennedy’s reasoning.
Justice Thomas said Section 2 of the Voting Rights Act did not protect even
districts in which minority voters represented a clear majority. So-called
vote-dilution claims, he wrote, quoting his own earlier opinion, have produced
“a disastrous misadventure in judicial policy making.”
Justices, 5-4, Set Limit
on Sweep of Voting Law, NYT, 10.3.2009,
Court Turns Down NYC Case Against Gun Industry
March 9, 2009
Filed at 10:12 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
WASHINGTON (AP) -- The Supreme Court has turned away pleas by New York City
and victims of gun violence to revive lawsuits accusing the firearms industry of
selling guns with the knowledge they could be sent to illegal markets.
The justices are not commenting on their order Monday that ends lawsuits first
filed in 2000. Federal appeals courts in New York and Washington threw out the
complaints after Congress passed a law in 2005 giving the gun industry broad
immunity against such lawsuits.
The city's lawsuit asked for no monetary damages. It had sought a court order
for gun makers to more closely monitor those dealers who frequently sell guns
later used to commit crimes.
The case is City of New York v. Beretta, 08-530.
Court Turns Down NYC
Case Against Gun Industry, NYT, 9.3.2009,
Court Sides With Colorado in Fee Dispute
March 9, 2009
Filed at 10:11 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
WASHINGTON (AP) -- The Supreme Court has rejected claims by Kansas that it is
owed $9 million in legal fees from Colorado over their century-long dispute over
water rights to the Arkansas River.
In an opinion Monday, the court is upholding a ruling by a special master
appointed to oversee the case that the fees for expert witnesses should be about
$163,000, not the $9 million sought by Kansas.
Colorado already had agreed to pay Kansas more than $34 million after the high
court decided in 1995 that groundwater pumping in Colorado diverted millions of
gallons of upstream water that rightfully belonged to Kansas.
Court Sides With
Colorado in Fee Dispute, 9.3.2009,
Court Ends Terror Suspect's Detention Challenge
March 6, 2009
Filed at 12:33 p.m. ET
The New York Times
By THE ASSOCIATED PRESS
WASHINGTON (AP) -- The Supreme Court dismissed a challenge Friday by
suspected al-Qaida sleeper agent Ali Al-Marri to the president's authority to
detain people without charges, granting an Obama administration request to end
the high court case.
The Supreme Court also threw out, as moot, the federal appeals court ruling
al-Marri was challenging that affirmed the president's power to detain people in
the United States without trial.
Last week, President Barack Obama ordered al-Marri transferred from military to
civilian custody to face federal charges of conspiracy and providing support to
But Obama has not renounced the use of preventive detention, which was pursued
and defended aggressively by the Bush administration after the terror attacks of
Sept. 11, 2001. The administration's silence on this issue was the main reason
al-Marri's lawyers pushed the court to hear the case even after their client got
what he was seeking -- if not his release, a trial at which he could answer
The new administration also made clear, however, that it had no desire to take a
position on the Bush policies in what would have been a major Supreme Court
The court had scheduled arguments for April 27 and would have issued a decision
Al-Marri is under indictment in Peoria, Ill. The court's order allows the
government to move him from the Navy brig in Charleston, S.C., where he has been
held for 5 1/2 years, to a civilian jail cell. Al-Marri, a native of Qatar, was
a legal U.S. resident who was studying at Bradley University in Peoria when he
was arrested in late 2001 as part of the investigation of the Sept. 11 attacks.
He was indicted on fraud charges, but that indictment was dropped in 2003 when
President George W. Bush declared him an enemy combatant.
The government has said al-Marri met with Osama bin-Laden and volunteered for a
suicide mission or whatever help al-Qaida wanted. He arrived in the U.S. the day
before terrorists struck the World Trade Center and the Pentagon.
A computer specialist, al-Marri was ordered to wreak havoc on the U.S. banking
system and serve as a liaison for other al-Qaida operatives entering this
country, according to a court document filed by Jeffrey Rapp, a senior member of
the Defense Intelligence Agency.
Al-Marri was helped in his mission by Khalid Sheikh Mohammed, the alleged
mastermind of the Sept. 11 attacks, and Mustafa Ahmad al-Hawsawi, who allegedly
helped the Sept. 11 hijackers with money and Western-style clothing, according
to Rapp's memo. Mohammed and al-Hawsawi are being held at the Guantanamo Bay,
Cuba, naval base.
The Bush administration also avoided Supreme Court review of the detention of
U.S. citizen Jose Padilla, alleged to be part of a plot to set off a
radiological ''dirty bomb'' in the United States.
Padilla was arrested in 2002 at Chicago's O'Hare International Airport and held
in the same brig as al-Marri. With his case headed for the high court, Padilla
was indicted and eventually convicted on criminal charges in Miami that were not
related to the ''dirty bomb'' plot.
Padilla's lawyers argued that the justices should hear his case anyway, but the
court turned them down.
Even so, three justices -- Stephen Breyer, Ruth Bader Ginsburg and David Souter
-- said Padilla's case should have been heard because it raised ''a question of
profound importance to the nation.''
There were no similar statements from the court Friday.
Court Ends Terror
Suspect's Detention Challenge, NYT, 6.3.2009,
Drug Approval Is Not a Shield From Lawsuits, Justices Rule
March 5, 2009
The New York Times
By DAVID STOUT
WASHINGTON — In one of the most important business cases in years, the
Supreme Court on Wednesday ruled that a drug company is not protected from
injury claims in state court merely because the federal government had approved
the products and its labeling.
The 6-to-3 ruling went in favor of a Vermont woman, a musician, who was awarded
more than $6 million after losing much of her arm following a botched injection
of an anti-nausea drug. It was a defeat for the Wyeth pharmaceutical company,
which had asked the justices to throw out the award, and by extension other
companies that might have pursued Wyeth’s line of argument in similar cases.
Ms. Levine had settled a parallel claim against the clinic where she was
The key issue before the justices was whether the Food and Drug Administration’s
approval of drug labels should control lawsuits in state courts contending, as
Ms. Levine’s did, that the labels did not contain adequate warnings. Wyeth’s
lawyers had argued that the company provided “ample, lavish warnings,” as one
attorney put it, and that Wyeth should not been held liable, because the Food
and Drug Administration had approved the label on the drug in question,
But the high court held, in an opinion by Justice John Paul Stevens, that
Wyeth’s reading of the pertinent federal regulation was “cramped” and based on a
“It is a central premise of the Food, Drug and Cosmetic Act and the F.D.A.’s
regulations that the manufacturer bears responsibility for the content of its
label at all times,” the majority concluded in Wyeth v. Levine, No. 06-1249.
The majority upheld the Vermont Supreme Court, which in 2006 rejected Wyeth’s
argument that it had been put in an untenable position: having to comply with
federal law, given its requirement that the F.D.A. approve drug labels, and yet
being punished by the state jury’s verdict for not using a different, more
Federal law “provides a floor, not a ceiling, for state regulation,” the Vermont
Supreme Court declared in the ruling that the United States Supreme Court
affirmed on Wednesday.
Ms. Levine’s suffering began in the spring of 2000 when, suffering from a
migraine, she visited a local clinic for a treatment she had received many
times: Demerol for pain and Phenergan for nausea.
If Phenergan is exposed to arterial blood, it causes swift and irreversible
gangrene. Therefore, it is typically administered by intramuscular injection.
Ms. Levine’s lawyers said an intravenous drip is also quite safe.
But a physician used a third method, injecting the drug into what she thought
was a vein, using a technique known as “IV push.” The assistant apparently
missed a vein and hit an artery instead, causing Ms. Levine’s right hand and
forearm to turn purple and black in the following weeks, leading to amputation
of much of her arm.
The F.D.A.-approved label warned that “inadvertent intra-arterial injection” can
cause gangrene requiring amputation, but it did not rule out administering the
drug by the “IV push” method.
The justices who sided with Ms. Levine on Wednesday said that “Wyeth could have
unilaterally added a stronger warning about IV-push administration” without
running afoul of federal regulations. Justices Anthony M. Kennedy, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Stevens, while
Justice Clarence Thomas filed an opinion concurring in the overall judgment.
Justice Samuel A. Alito Jr. wrote a dissent declaring, “This case illustrates
that tragic facts make bad law.” Joining him with Chief Justice John G. Roberts
Jr. and Justice Antonin Scalia.
Bert Rein, an attorney for Wyeth, said the company “fully complied with federal
law” in its labeling, and that the F.D.A. “is in the best position to weight the
risks and benefits of a medicine.”
Ms. Levine, now 63, was overjoyed. “Oh, my God. I’m so, so happy,” she told The
Associated Press in a telephone interview. “I’m just ecstatic. I’m going to have
to sit down.”
Drug Approval Is Not a
Shield From Lawsuits, Justices Rule, NYT, 5.3.2009,
Roberts Sets Off Debate on Judicial Experience
February 17, 2009
The New York Times
By ADAM LIPTAK
For the first time in its history, every member of the United States Supreme
Court is a former federal appeals court judge. Chief Justice John G. Roberts
Jr., in a lively and surprising talk a couple of weeks ago, said that
development might be a good thing.
Over the life of the Supreme Court, its members were quite likely to be former
governors, legislators, cabinet members, law professors and practicing lawyers.
That mix of backgrounds and expertise might strike some as valuable, but the
chief justice suggested that it tended to inject policy and politics into an
area properly reserved for the law.
As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist,
joined the court as an associate justice, former federal judges were in the
As a consequence, Chief Justice Roberts said, “the practice of constitutional
law — how constitutional law was made — was more fluid and wide ranging than it
is today, more in the realm of political science.”
Since then, Chief Justice Roberts continued, “the method of analysis and
argument shifted to the more solid grounds of legal arguments. What are the
texts of the statutes involved? What precedents control?”
That move, he said, has resulted in “a more legal perspective and less of a
Chief Justice Roberts spoke at the University of Arizona’s law school on Feb 4.
The next day, Justice Ruth Bader Ginsburg underwent surgery for pancreatic
cancer. Justice Ginsburg plans to return to the court next Monday, but should
there be an opening on the court in the near future, the chief justice’s musings
about the proper background for his colleagues will carry weight.
If President Obama makes a selection for the court, he will confront what law
professors have started to call “the norm of prior judicial experience,” and he
may find it hard to resist.
But there are reasons to question the chief justice’s conclusions.
The political scientists who study such things say there is no empirical support
for the notion that former judges are more apt to feel constrained by earlier
rulings or to suppress their political views. “Former appellate court judges are
no more likely to follow precedent or to put aside their policy preferences than
are justices lacking judicial experience,” according to a study to be published
soon in the University of Pennsylvania Law Review.
If Chief Justice Roberts was implying that the court became less political as
the number of former judges on it rose, said Lee Epstein, who teaches law and
political science at Northwestern and is one of the authors of the study, “the
data don’t support it.”
And not everyone supports the idea that members of the court should have uniform
backgrounds. The psychological literature demonstrates that “the more homogenous
the group, the worse the quality of the decisions they make,” said Tracey E.
George, a law professor at Vanderbilt and the author of a law review article
about the consequences of promoting former judges to the Supreme Court.
Chief Justice Rehnquist, who was a Justice Department official before he joined
the court and was the last justice without a judicial background, was also wary
of having only former judges on the court.
“It would too much resemble the judiciary in civil law countries,” he wrote in
2001, referring to legal systems in which being a judge is a lifelong civil
service career. “Reasonable people, not merely here but in Europe, think that
many civil law judicial systems simply do not command the respect and enjoy the
independence of ours.”
The trend toward looking mostly to the lower federal courts for Supreme Court
justices started in the 1950s and was apparently prompted in part by complaints
from Southern members of Congress after Brown v. Board of Education, the 1954
decision barring segregation in public schools.
The court that decided Brown included Chief Justice Earl Warren, a former
governor of California; Hugo L. Black, a former United States senator; Felix
Frankfurter, a former law professor; William O. Douglas, who had served as
chairman of the Securities and Exchange Commission; and Robert H. Jackson, who
had been the attorney general.
The Southern lawmakers, according to John R. Schmidhauser’s 1959 study of the
court’s justices, urged President Dwight D. Eisenhower to appoint former judges
who could be trusted to base decisions “upon ‘law,’ not ‘sociology.’ ”
Before Eisenhower’s presidency, about a third of the nominations to the Supreme
Court went to sitting judges. Since 1953, more than two-thirds have.
Justice Frankfurter, writing in 1957, had a blunt assessment of this phenomenon.
“The correlation between prior judicial experience and fitness for the functions
of the Supreme Court,” he said, “is zero.”
Chief Justice Roberts, in his remarks in Arizona, said his court was “very
diverse in terms of the experiences people bring.” Justices Ginsburg, Stephen G.
Breyer and Antonin Scalia all taught law before becoming judges. Justice David
H. Souter was New Hampshire’s attorney general. The chief justice and Justices
Anthony M. Kennedy and John Paul Stevens all had substantial careers in private
On the other hand, “over the entire course of the court’s history, all but two
justices, Breyer and Ginsburg, worked at one time or another in private
practice,” according to a 2003 study in the California Law Review. Since then,
the court has added a third such member in Justice Samuel A. Alito Jr.
Chief Justice Roberts did say that the current justices’ limited trial court
experience was “an unfortunate circumstance” and “a flaw.” Chief Justice
Rehnquist tried to remedy that by once appointing himself to the trial bench in
Virginia during a Supreme Court recess.
“He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and
was promptly reversed by the Fourth Circuit.” He added, “Partly because of that,
I can assure you that I am not going to appoint myself to the trial bench.”
Roberts Sets Off Debate
on Judicial Experience, NYT, 17.2.2009,
Court Limits Use of Law Aimed at Career Criminals
January 13, 2009
Filed at 11:02 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
WASHINGTON (AP) -- The Supreme Court has ruled that a failure to report for
prison does not count as a violent crime under a federal law intended to keep
repeat criminals in prison longer.
A unanimous court on Tuesday threw out a mandatory 15-year prison term given to
Deondery Chambers, who pleaded guilty to being a felon in possession of a gun.
Chambers had three prior convictions, which prosecutors argued and lower courts
agreed brought him under the federal Armed Career Criminal Act.
But one of Chambers' convictions was for his ''failure to report'' for weekend
jail stays. The government contended that not showing up for the weekend
confinement was akin to an escape and should be treated as a violent crime.
Justice Stephen Breyer rejected that argument in his opinion for the court.
Breyer said a report that examined failures to report to prison found no
evidence that defendants were more likely to resist arrest and potentially
injure law enforcement officers or others.
In a separate opinion, Justice Samuel Alito said the court is called on too
often to interpret the career criminal law and suggested that Congress come up
with a list of specific crimes that should trigger application of the law.
In a second criminal case, the court unanimously ruled for a Texas prison inmate
seeking federal review of his 43-year prison term. The federal appeals court in
New Orleans was wrong to find that Carlos Jiminez had missed a deadline for
filing his paperwork in federal court, Justice Clarence Thomas said for the
The cases are Chambers v. U.S., 06-11206, and Jiminez v. Quarterman, 07-6984.
Court Limits Use of Law
Aimed at Career Criminals, NYT, 13.1.2009,