I haven’t had time to research and review Judge Sonia Sotomayor’s body of opinions, so I’ll limit myself to a couple additional comments (beyond my Part 1 post):
1. On those occasions on which the Supreme Court has reviewed Sotomayor’s rulings, she hasn’t fared well, drawing some pointed criticism and garnering at most 11 out of 44 possible votes for her reasoning across five cases.
In Malesko v. Correctional Services Corp. (2000), Sotomayor ruled that the Court’s 1971 ruling in Bivens, which implied a private action for damages against federal officers alleged to have violated a citizen’s constititutional rights, should be extended to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons. On review (Correctional Services Corp. v. Malesko (2001)), the Court reversed Sotomayor by a 5-4 vote. Chief Justice Rehnquist’s majority opinion labeled the plaintiff’s claim “fundamentally different from anything recognized in Bivens or subsequent cases.” In his concurring opinion, Justice Scalia acknowledged that “a broad interpretation of [Bivens’] rationale would doubtless produce [the] application” made by the dissenters (and Sotomayor). But, as he put it, “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.” The Court has abandoned that power in the statutory field, and “[t]here is even greater reason to abandon it in the constitutional field, since an ‘implication’ imagined in the Constitution can presumably not even be repudiated by Congress.”
Just last term, in Knight v. Commissioner, the Supreme Court, in a unanimous opinion by Chief Justice Roberts, reached the same end result as Sotomayor on a tax question, but faulted her for adopting a reading of the relevant statute that “flies in the face of the statutory language.” In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor’s ruling that certain state-law securities claims were not preempted by federal law. Stevens pointed out that the Court had rejected Sotomayor’s interpretation in cases from 1971 forward. In New York Times v. Tasini (2001), the Court, by a 7-2 vote, rejected the reading of copyright law that Sotomayor had adopted (as the district judge in the case).
In Empire Healthchoice Assurance v. McVeigh, the Court, by a vote of 5 to 4, affirmed a ruling by Sotomayor on a question of federal jurisdiction. (On a quick read, I can’t readily discern whether the majority’s grounds are the same as Sotomayor’s, but will assume for purposes of my cumulative vote tally that they are.)
I’ll also note that the Court has granted review of Sotomayor’s decision in Riverkeeper v. EPA ruling that certain provisions of the Clean Water Act do not authorize the EPA to engage in cost-benefit analysis in crafting its rules. The Supreme Court will decide that case—recaptioned Entergy Corp. v. EPA—this coming term.
(If any reader is aware of cases I’ve missed in which the Supreme Court has reviewed a ruling by Sotomayor, please let me know. )
2. Sotomayor is often painted as a moderate by virtue of the fact that President George H.W. Bush formally appointed her to a district-court seat. But, as I’ve explained before, when President Bush nominated Sotomayor to the district court in 1991, the New York senators, Moynihan and D’Amato, had forced on the White House a deal that enabled the senator not of the president’s party to name one of every four district-court nominees in New York. Sotomayor was Moynihan’s pick. I am reliably informed that Bush 41’s White House nonetheless resisted nominating her because she was so liberal and did so in the end only as part of a package to move along other nominees whom Moynihan was holding up.
I’ll also highlight that in 1998, on the roll-call vote on President Clinton’s nomination of Sotomayor to the Second Circuit, 29 Republican senators (including John McCain) voted against her confirmation.