When it comes to civil-liberties cases — especially civil liberties on high-school or college campuses — it is not always easy to predict outcomes based on ideology. (For Exhibit A of how conservative justices can get to the wrong answer, witness the otherwise-excellent Chief Justice Roberts’s Shakespearian love-sonnet to school administrators in the “Bong Hits for Jesus” case). There is, however, a great and overriding concern regarding Judge Sotomayor, and Wendy Long hits the nail on the head in today’s Bench Memos. The concern is identity politics.
Speech codes are born out of identity politics. Christian student groups are thrown off campus because of identity politics. Even due process falls before identity politics as administrators often race each other to see how quickly they can vindicate the grievances of the student group du jour. Identity politics present arguably the central threat to core First Amendment values. How would Judge Sotomayor rule when a plaintiff’s free-speech or free-association rights offend or exclude a particular victim group?
One final note . . . my first major federal case (as a young associate in New York) was before then-district judge Sotomayor. She was exactly as advertised — extremely well-prepared and very aggressive in her questioning. One got the feeling that she did not suffer fools lightly.