Monday, October 5, 2009
The Post asked legal experts what could be expected from the Supreme Court during Justice Sonia Sotomayor's first year. Below are contributions from Bradford A. Berenson, Maria Echaveste, Paul D. Clement, Erwin Chemerinsky, Jonathan H. Adler, John Elwood and Gerald Torres.
BRADFORD A. BERENSON
Associate counsel to President George W. Bush from 2001 to 2003; partner at Sidley Austin LLP; clerked for Justice Anthony M. Kennedy
The really interesting question is how different, if at all, Justice Sonia Sotomayor will be from former justice David Souter in the cases where her vote really matters. The big surprise from her first year may well be that, in the relatively few 5 to 4 cases where her views differ meaningfully from his, she will move the court to the right.
Sotomayor's instincts appear to be more conservative than Souter's in several areas. She is probably more sympathetic to the holders of intellectual property rights. With her background as a prosecutor, she weighs the needs and interests of law enforcement more heavily than he did. There are indications that she might also be more sensitive to and respectful of national security concerns than Souter.
The docket includes important cases where these differences could come into play. Her views could lead to the narrowing of the last term's decision holding that crime lab analysts must provide live testimony concerning lab tests and results. Souter supplied the fifth vote in that case, which drew a strong dissent from Anthony M. Kennedy and has been criticized by prosecutors as unworkable. This term, Briscoe v. Virginia provides an opportunity to limit the scope of that ruling. Sotomayor's vote could also prove important to the government's effort to defend the constitutionality of one of its main antiterrorism tools in the civilian justice system: the criminal statute that punishes providing material support to terrorist groups.
Sotomayor will take a while to settle into the job, and the first year won't necessarily provide a reliable indication of the nature and extent of her ultimate influence on the court. But cases like these could be an interesting bellwether.
Former deputy chief of staff to President Bill Clinton; founder of the government relations firm Nueva Vista Group; lecturer at the University of California at Berkeley School of Law
In light of the right-wing hysteria that a Justice Sonia Sotomayor would inappropriately focus the Supreme Court's attention on minority, gender and social justice issues, some will be looking to see Sotomayor make rookie mistakes. They will surely be disappointed. With her 17 years of judicial experience, it's more likely that the new justice will be thoughtful, careful and measured. Yet given the cases already argued and those on deck -- the Hillary Clinton infomercial case on campaign finance and the Chicago gun control case in particular -- we may see soon whether court dynamics have been changed by the addition of this New Yorker of Puerto Rican heritage. It may be that Chief Justice John G. Roberts will seek her support on major cases in hopes of reducing the stark division heretofore exhibited on the court. This may result in more moderate decisions than might otherwise have emerged. As the Republicans who voted against her were acutely aware, this is the court that actually makes law by applying the law, provided you get at least five votes, and still better if you get six.
PAUL D. CLEMENT
Solicitor general from June 2005 to June 2008; partner in the Washington office of King & Spaulding and head of the firm's national appellate practice
By adding cases last week on the Second Amendment and material support of terrorism to an already diverse docket, the Supreme Court all but guaranteed that this term will be one to remember. Some of its highest-profile cases will force justices to choose between competing instincts. Take the issue of whether the Second Amendment protects citizens against state and local gun control laws: Justices who are the most bearish on Second Amendment rights are also likely to be the most bullish on "incorporating" federal rights against states, and vice versa. Similar crosscurrents arise in a case involving a federal civil commitment statute for violent sexual offenders, an area of traditional state concern.
Particularly noteworthy will be cases in areas in which former justice David Souter sometimes provided the fifth vote. Both business cases (he cast the fifth vote to reduce the punitive damages in the Exxon Valdez case) and criminal procedure/sentencing cases (he was often the fifth vote in an unusual alliance with a pro-defendant view of the Sixth Amendment) fit this bill. These cases will tell us a great deal about the newest justice and the court's future direction.
Founding dean of the School of Law at the University of California at Irvine
What weight will the Roberts court give to precedent? Only on occasion in the past four years has the Roberts court expressly overruled prior decisions; instead, it has mostly implicitly reversed them in moving the law in a more conservative direction. This term, several of the most important cases directly raise the question of whether precedent should be overruled.
In Citizens United v. Federal Election Commission, argued on Sept. 9, the court is considering whether to overrule earlier decisions that upheld restrictions on corporate spending in election campaigns. In Salazar v. Buono, to be argued on Wednesday, the court considers whether a large cross on previously federal property violates the Constitution's establishment clause. There may be five votes on the court to make it much more difficult for anyone to challenge religious symbols on government property, or to allow such symbols in most instances. In McDonald v. City of Chicago, the court will consider whether to overrule 19th-century decisions holding that the Second Amendment does not apply to state and local governments.
In all three areas, the five conservative justices -- John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito -- likely favor a significant change in the law. These cases will give a sense of how much precedent will matter and how far the Roberts court will go in moving constitutional law in a conservative direction.
JONATHAN H. ADLER
Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law
Justice Sonia Sotomayor's confirmation was an important milestone. Yet this term is more likely to be remembered for its cases than the change in personnel. This term has the potential to reveal more about the Roberts court and its likely doctrinal course than any we've seen thus far. The docket is filled with potential blockbuster cases, several raising issues the Roberts court has yet to confront, including: the scope of federal power to regulate commerce; the application of the Constitution's takings-clause compensation requirement to state court decisions that allegedly take private property; and the limits of congressional authority to insulate independent agencies from executive control. This last case, Free Enterprise Fund v. Public Company Accounting Oversight Board, is easily the most important domestic separation-of-powers case in 20 years, while United States v. Comstock will reveal whether the Roberts court will maintain the Rehnquist court's commitment to federalism.
The high court just agreed to consider whether the Second Amendment applies to state and local governments and whether it is constitutional to prohibit alleged humanitarian assistance to organizations the federal government has deemed terrorist groups. While some cases inevitably fail to live up to expectations, and sleepers always emerge, it's notable how many significant issues are already on the docket.
Assistant solicitor general from 2002 to 2005; clerk for Justice Anthony M. Kennedy, 1996-97; appellate attorney at Vinson & Elkins LLP
Justice Sonia Sotomayor will not have the luxury of a slow start to become acclimated to her new position. She has joined the Supreme Court during one of its most consequential terms in years, when it is already considering fundamental changes in campaign finance (the Citizens United case) and stands poised to consider critical questions about the states' ability to regulate gun possession (McDonald v. Chicago), separation of powers (Free Enterprise Fund v. Public Company Accounting Oversight Board), the constitutionality of civilly detaining sex offenders who have served the sentence for their crimes (United States v. Comstock), as well as important business cases involving antitrust law (American Needle v. National Football League) and arbitration (Stolt-Nielsen v. Animalfeeds). Sotomayor's replacement of former justice David Souter seems unlikely to change the outcome of many cases. But her long service as an attorney and as a lower court judge will bring additional practical experience to the court's conferences. Her presence may also have the welcome effect of encouraging the court to provide more practical and concrete guidance to practitioners and courts in its opinions. Finally, the court remains divided ideologically on many issues, but her outgoing personality should make her a welcome colleague in resolving difficult cases.
Professor at the University of Texas School of Law; counsel to Attorney General Janet Reno; knew Sotomayor when she was a law student
We can expect a careful judge -- and I use the term judge purposely. As a federal prosecutor, federal district judge and federal appellate judge Sonia Sotomayor was not merely a justice-in-waiting. She comes to the role of justice having served more than a perfunctory appellate court apprenticeship, from a long exposure to the importance of facts and their role in constructing the meaning of law. This training has produced sensitivity to how law affects the lives of the people before the court. Principles live through people, not the reverse.
Her questioning of the parties in the first case she heard, Citizens United v. Federal Elections Commission, reflects these commitments. In one question, she asked if the court would be "cutting off" the "future democratic process" if it ruled broadly, deciding to answer a question not properly before it in order to treat all corporations as natural persons. It was the right question, especially because it was a judge-made rule that created the problem the court was addressing. For Sotomayor, perhaps, it is the wise people who ought to lead rather than the courts.