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

December 28th, 2010

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!