The Supreme Court ended its term with several high profile 5–4 decisions: McDonald vs. Chicago (the Second Amendment applies to state and local governments); Christian Legal Society v. Martinez (right of law school organizations to restrict membership to students who embrace core beliefs); and Free Enterprise Fund v. PCAOB (Public Company Accounting Oversight Board appointment/removal process is unconstitutional).
In each of the cases, Justice Sotomayor sided with Justices Stevens, Ginsburg, and Breyer. That is noteworthy on its own, but it is especially noteworthy in light of the fact that the White House and its allies bent over backwards to sell Sotomayor as the next John Roberts. According to their narrative, Sotomayor was a restrained and non-ideological jurist who would faithfully apply the law and the original meaning of the Constitution. During her hearings, nominee Sotomayor did her best to perpetuate that idea.
Two excerpts from Sotomayor’s testimony are illustrative.
On the use of foreign law, Justice Sotomayor stated, “I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.” But, as Senator Coburn has done a nice job of highlighting, that commitment did not stop her from siding with the liberal justices in Graham v. Florida, citing foreign law to hold that it is unconstitutional to sentence a juvenile offender to life without parole for a non-homicidal crime.
On the Second Amendment, Justice Sotomayor took the absurd step of pointing out that “one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.” According to Sotomayor, “I understand that how important the right to bear arms is to many, many Americans.” But, as the McDonald decision demonstrates, she didn’t understand it to be protected by the Constitution.
So what does this mean for the Kagan hearings? Expect a confirmation conversion, and don’t buy it.