Washington Times Demands More Activism From Sotomayor

An editorial in today’s Washington Times accuses Judge Sotomayor of being unwilling “to provide more reasoning than a few hundred words for controversial cases in which the public clearly sides against [her] position.” Citing four cases in which Sotomayor handed down a short dissenting opinion or a brief unpublished order, the editorial claims that she is “dismissive[] when ruling against individual weapons rights, property rights and the employment rights of white firefighters and against a state’s traditional authority to prohibit currently imprisoned felons from voting.”

This editorial, however, reveals far more about the ignorance of the Washington Times’ editorial board than it does about Sotomayor. The overwhelming majority of federal appeals are resolved by a brief unpublished order — Tom Goldstein’s seminal study on Sotomayor’s race cases, for example, found that her court published a decision in only 5 of 55 decisions affirming a district court’s decision. Lengthy published opinions are rare, not because judges are “dismissive,” but because their use is reserved to groundbreaking decisions that resolve previously unresolved questions of law. Yet, according to research compiled by The Wonk Room, each of the four decisions cited by the Washington Times, did nothing more than follow well-established law:

  • The Second Amendment: Last year, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. But another Supreme Court decision, which has never been overruled, held that the Second Amendment does not apply to state laws. So, in Sotomayor’s decision upholding a New York State ban on nunchaku, she did nothing more than recognize that only the Supreme Court has the “prerogative of overruling its own decisions.”
  • Property Rights: In 1999, two developers learned that their land was part of a “redevelopment zone” and subject to seizure by eminent domain. Yet the developers waited until 2004 to file suit–two years after the three year statute of limitations had expired. Sotomayor’s decision held simply that land developers cannot wait forever to file a claim, just like everyone else.
  • White Firefighters: In her now-famous Ricci decision, Judge Sotomayor held that an employer could decide not to certify the results of a promotion test that had an adverse impact on minorities. In 1984, eight years before Sotomayor became a judge, her court decided a virtually identical case called Bushey v. New York State Civil Service Commission, and it reached exactly the same result. So Sotomayor simply followed the binding precedent established by Bushey, which has never been overruled.
  • Felony Disenfranchisement: Bizarrely, the Washington Times lumps Sotomayor’s published dissent in Hayden v. Pataki together with the other cases on this list as an example of her “dismissive approach.” Although Sotomayor’s dissent in Hayden was brief, she also joined a 32-page dissent by George W. Bush appointee Barrington Parker — judges frequently join the opinion of another judge that they agree with rather than waste effort repeating what has already been said. Moreover, Sotomayor’s dissent in Hayden rejected the majority’s claim that they could invent an exception to the Voting Rights Act which does not exist in the text of that law. Sotomayor thought that Congress gets to decide what the law says, a majority of her colleagues thought that they knew better than Congress.

In the end, we can either live in Judge Sotomayor’s world, a world where judges follow the law, or we can live in the Washington Times’ world, where the law must take a backseat to whatever is popular.