Dec 28, 2010

Posted in Uncategorized

So what if Sotomayor dissents from denials of cert and asks pointed questions?

My good friend Mike Sacks wrote an eloquent post a few weeks ago titled The Future Is Here. In it, Mike argues that Justice Sotomayor has become the liberal “enforcer,” on the bench, through her sharp questioning and dissents from denial of cert.  Mike’s post has echoed throughout the SCOTUSphere (see Joan Biskupic and David Savage).  Adam Liptak builds on Mike’s “amusing and astute post” in the TImes arguing that Sotomayor Guides Court’s Liberal Wing.  I ask, what is the end of Sotomayor’s strategy? Several of these articles suggest that it will have the effect of shifting the Court to the left.

I’m cautious about reading too much into Sotomayor’s actions. Sure, Sotomayor is vocal on the bench. I’ve attended a number of oral arguments, and anecdotally, I’ve noticed that she tends to ask a lot of forceful questions as compared to her predecessor, and is frequently the first to ask a question. Likewise, she has taken to penning dissents from denial of cert on certain hot-button issues like prisoner rights. She is certainly trying to do something to shake things up. Whether her actions will guide the liberal wing, and presumably shift the Court to the left, is dubious.

We’re told that Chief Justice Roberts, the master tactician and illusionist, has been able to chart the Court rightward through building consensus and devising nefarious long-term strategies. Likewise, Justice Stevens was a brilliant tactician on the left, repeatedly using his senior status to assign controversial opinions to Justice Kennedy in an attempt to make the Court swing 5-4 the other way. Look at the detainee and death penalty cases. Stevens was demure, crafty, and strategic.

If these are our models for Judicial persuasion, then how should we characterize Sotomayor’s, in the words of Orin Kerr, “puzzling,” dissents from denial of cert and aggressive questioning?

The only thing that will shift the Court to the left (other than a retirement) is persuading Justice Kennedy to change his mind. Does anyone think Justice Sotomayor’s brusque questions at oral arguments and dissent from a denial of cert on a case that none of her colleagues found worthy of review on a claim that the court of appeals found “patently frivolous” will make any difference?

For the possible negative consequences of an aggressive Justice, look no further than Justice Scalia. Surely, Scalia’s rhetoric has done nothing to shift Kennedy, and previously O’Connor, to the right. If anything, it has pushed them away. President Bush did not even consider him for Chief for these reasons.

Why would anyone think that Sotomayor doing her best Scalia impression would bring Kennedy to the left? It could even have the unintended consequence of pushing him the other direction, especially with a tactful Chief Justice at the helm of One First Street assigning opinions.

Justice Kagan, and her suave, unassuming but persuasive temperament, may represent the Left’s last best hope to persuade Justice Kennedy on the key issues of the day.

Regardless, I think this issue is rather premature. The effectiveness of Justice Sotomayor can really only be assessed after the conclusion of several terms, if we see that somehow Justice Kennedy has shifted his votes to the left. Though, since Justice Sotomayor is so Junior, she cannot assign opinons, and this capability is limited. Making such a big fuss over sharp questioning and dissents from denial of cert is nothing short of Supreme Court navel gazing (of which I am a big fan) and unbounded optimism. Let’s revisit this in a few years.

Update: Thanks for the link from Reason!

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  • Inability to persuade Kennedy notwithstanding, I think it’s pretty clear that Scalia fills a valuable role for the project of conservative jurisprudence. There’s no reason why the liberals can’t delegate someone else to the project of persuading Kennedy, while letting Sotomayor play “bad cop”.

    • Josh Blackman

      Sotomayor can, and will play “bad cop.” I am just cautious about the media’s attempt to portray Sotomayor as the new Brennan leading the left to the promised land. I don’t see her as playing a “s a valuable role for the project of [progressive] jurisprudence.

  • Can either of you tell me how Kennedy decides how to vote on an issue that he has not previously had to think about? If you cannot do so, do you believe that his colleagues can?

    I suspect that they write their decisions with the intention, in part, of gaining his vote, if not on the case at hand then possibly on the next one. But one side or the other always loses, and it is not always the same side. Does this not indicate that trying to persuade him is a fool’s errand that the other justices nevertheless cannot avoid?

    In short, isn’t the issue of what Sotomayor is doing not worth exploring, at least until the composition of the Court changes?

    • Josh Blackman

      I think one of the ways that the Right can bring Kennedy to their side is to allow him to write the opinion and hold their nose. In the past, Justice Stevens employed this approach deftly on detainee cases and most death penalty cases. As I noted in the post, the liberals no longer have a senior justice, and cannot really assign any meaningful opinions. So it’ll be harder. I doubt anyone can write anything to persuade AMK.

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  • Now that the Term is over, is there anything in this post that you would care to revise?

    • Josh Blackman

      Anything you think I can revise? The SCOTUSBlog stat pack shows that Justice Sotomayor was in full agreement with Justice Kennedy 60% of the time. That is more than Breyer (56%) or Ginsburg (53%) but less than Kagan (63%).

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