LatinaLista — Monica Youn is the author of a new study entitled Judge Sotomayor’s Record in Constitutional Cases.
As an attorney in the Democracy Program of the Brennan Center for Justice at New York University School of Law, a nonpartisan part think-tank, part public interest law firm, part advocacy group that focuses on issues of democracy and justice, Youn, in conjunction with the Brennan Center, felt they could share significant insight to the ongoing debate surrounding Judge Sotomayor and the issue of judicial activism.
Given that the namesake of the Brennan Center was Supreme Court Justice William J. Brennan, Jr., — a position he held for 34 years, until replaced by Justice David Souter, and the very seat for which Judge Sotomayor is being considered — Youn and the Brennan Center staff felt compelled to set the record straight on “judicial activism.”
Declaring that they take no position on Judge Sotomayor’s confirmation, Youn and the Brennan Center staff reviewed a total of 1,194 constitutional cases decided by the Second Circuit during Judge Sotomayor’s service.
The team created a set of distinct criteria to measure the “relative deference or activism” of Sotomayor, in comparison to her colleagues’ actions in particular cases.
Their review of the facts revealed one unmistakable conclusion.
(The following is a condensed version of the full analysis Judge Sotomayor’s Record in Constitutional Cases.)
Fears that unelected, life-tenured federal judges will abuse their prerogatives to rule by judicial fiat are as old as the Republic. As Alexander Hamilton stated in Federalist No. 78, “The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure for that of the legislative body.”
The Supreme Court has been criticized for judicial activism ever since Marbury v. Madison established the federal judiciary’s power of judicial review in 1803.
Some have viewed the power of judicial review as the essential safeguard of constitutional rights and freedoms against the tyranny of the majority, while others have worried about usurpation of democratic functions by unaccountable elites.
Accusations of inappropriate “judicial activism” have been hurled at judges at both ends of the ideological spectrum. The Warren Court — including this Center’s namesake Justice William F. Brennan, Jr. — is often invoked as “the poster child of judicial activism.”
However, it bears pointing out that the Warren Court decisions that provoked the most impassioned accusations of “activism” at the time — decisions such as Brown v. Board of Education (ending segregation in public schools), Gideon v. Wainright (establishing the right to counsel in criminal cases), or Mapp v. Ohio (establishing the exclusionary rule in criminal prosecutions) — are today widely considered to be pillars of our constitutional jurisprudence.
The public, political, and academic furor over “judicial activism” shows no signs of dying down. In a 2005 survey conducted by the American Bar Association, a majority of respondents agreed with statements that “‘judicial activism’ has reached the crisis stage and that judges who ignore voters’ values should be impeached.”
The term “judicial activism” has been “omnipresent” in Supreme Court confirmation
hearings over the past few decades, and Judge Sotomayor’s confirmation hearing looks to be no exception.
After we analyzed every constitutional case in the Second Circuit over the past decade, what was striking was the degree of unanimity and consensus on a court roughly evenly split between Democratic appointees and Republican appointees.
Judge Sotomayor joined unanimous decisions in constitutional cases 94.0% of the time, even more frequently than the Second Circuit rate of 93.0% unanimity. Additionally, Judge Sotomayor was part of the majority in 98.2% of the constitutional cases in which she participated, just slightly more often than the Second Circuit rate of 98.1%. She dissented in only 4 of the 217 cases in which she participated.
Judge Sotomayor voted to hold the challenged governmental action unconstitutional in 21.2% of her constitutional cases, as opposed to a Second Circuit rate of 17.5%, a difference of only 3.7 percentage points.
This difference is statistically insignificant. Of the 46 cases in which Judge Sotomayor voted to overturn governmental action, the panel was unanimous in 42 cases, or 91.3% of the time.
Furthermore, Judge Sotomayor was in the majority in 45 of the 46 cases, or 97.8% of the time. Out of the 46 cases in which Judge Sotomayor voted to overturn governmental action, 34 included at least one Republican appointee.
In such cases, Judge Sotomayor voted with the Republican appointee(s) on the panel in 30 cases, or 88.2% of the time.
Judge Sotomayor voted to reinstate a constitutional claim that had been dismissed by the lower court — without ruling on the merits — in 6.9% of cases, slightly higher than a Second Circuit rate of 5.6%.
Judge Sotomayor voted to overrule the lower court or agency in 35.0% of her decisions,
essentially the same as the Second Circuit rate of 35.1%. Again, this is statistically insignificant.
Out of the 76 cases in which Judge Sotomayor voted to overrule the lower court or agency, 71 of the cases (93.4%) were unanimous, two (2.6%) were divided with Judge Sotomayor in the majority, and Judge Sotomayor dissented in three (3.9%) cases.
At least one Republican appointee joined her decision to overrule the lower court or agency in 48 of the 51 cases (94.1%) in which a Republican appointee sat on the panel.
Our analysis shows that — far from revealing her as an “outlier” — Judge Sotomayor’s record is remarkably consistent with that of her colleagues.
Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist.