In 1996, Judge Sonia Sotomayor delivered a speech to law students that she then turned into a law-review article (which she co-authored with Nicole A. Gordon), “Returning Majesty to the Law and Politics: A Modern Approach” (30 Suffolk U.L. Rev. 35 (1996)). The article is muddled and mediocre—it’s certainly not something that those struggling to portray Sotomayor as brilliant would want to highlight—but I will focus less on its overall quality than on some of Sotomayor’s arguments:
1. Sotomayor argues, “It is our responsibility”—the responsibility of lawyers and judges—“to explain to the public how an often unpredictable system of justice is one that serves a productive, civilized, but always evolving, society.” She identifies—and treats as equally legitimate—four “reasons for the law’s unpredictability”: (a) “laws are written generally and then applied to different factual situations”; (b) “many laws as written give rise to more than one interpretation”; (c) “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction”; and (d) the purpose of a trial is not simply to search for the truth but to do so in a way that protects constitutional rights.
Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for a judge to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process,” and she laments that lawyers “have also unfortunately joined the public outcry over excessive verdicts and seemingly ridiculous results reached in some cases” (as though lawyers have some special responsibility to indulge judicial excess). The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of liberal ideology of Clinton judicial appointments and American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges.
2. Sotomayor discusses “the law” without distinguishing meaningfully between the legislature’s role in making law and the judiciary’s role in applying it. For example, she asserts:
The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.
What the public is entitled to expect is that judges will apply the law neutrally, according to established principles. That’s a large part of what the “rule of law” means. It’s the province of legislatures to change the law (prospectively, of course) to “respond[] to changing circumstances.”
3. Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law.” But beyond pointing out the uncontroversial fact that some indefiniteness is inevitable (for reasons (a), (b), and (d) in point 1), she nowhere makes the case that indefiniteness is somehow a positive good. She relies heavily on Jerome Frank’s legal realist views about the development of law, but nowhere explains why legislatures aren’t the proper forum for (to use Frank’s phrase) “adapting [law] to the realities of ever-changing social, industrial, and political conditions.”
4. As if Sotomayor’s unwarranted celebration of “indefiniteness” weren’t enough to alarm anyone who cares about the rule of law, anyone interested in civil-justice reform ought to take note of Sotomayor’s criticism that “legislators have introduced bills that place arbitrary limits on jury verdicts in personal injury cases. But to do this is inconsistent with the premise of the jury system.” Oh, really? How can it be that legislation can determine when juries should rule for plaintiffs but not limit the amounts they can award?