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Sotomayor Is No Activist Judge, Says Author
The National Law Journal
June 08, 2009
Supreme Court nominee Sonia Sotomayor's published majority opinions in the last eight years do not paint a portrait of an activist judge, according to the co-author of a new book on measuring judicial activism.
To evaluate Sotomayor's decisions since January 2001, Stefanie Lindquist of the University of Texas School of Law applied the political science tools and activism classifications used in her book to examine Supreme Court justices' votes over the last five decades. She is co-author with Frank Cross, also of the University of Texas School of Law, of "Measuring Judicial Activism."
Her preliminary findings, she said, showed the following:
First, Sotomayor is not a consistently liberal voter. Using political science techniques to code her votes as liberal or conservative depending on the parties bringing suit, Sotomayor rendered liberal decisions in about 40 percent of all cases. That percentage rose to about 50 percent when criminal appeals were omitted from the sample. On civil right matters, Sotomayor was somewhat more responsive to civil liberties claimants, deciding on their behalf about 57 percent of the time. This sub-sample, explained Lindquist, included a number of immigration appeals in which Sotomayor reversed the Board of Immigration Appeals to allow certain aliens to avoid deportation or argue in favor of asylum.
"As one might expect, her dissents are somewhat more liberal, but the small numbers make it difficult to draw any firm conclusion about them," she added. "According to my data, 12 of 19 involved positions one might characterize as liberal, or about 63 percent liberal dissents. Again, this is not a big surprise nor does it even indicate a dramatically liberal leaning on her part.
Second, Sotomayor's published opinions include a relatively substantial percentage of reversals of the district court or agency: she reversed about 45 percent of the decisions reviewed -- a percentage that is slightly higher than the typical reversal rate for most circuits in published cases (about 40 percent, according to Lindquist's own published study of the circuit courts).
"Her reversal record does not necessarily reflect any particular activism even if one considers reversals more activist than affirmances," said Lindquist.
Third, when the issue arose in her court, Sotomayor deferred to legislative judgments, invalidating only one state statute on preemption grounds but otherwise upholding statutes (state or federal) when they were challenged before her on constitutional grounds.
Fourth, Lindquist found, Sotomayor was also inclined to grant access to the federal courts via standing doctrines or jurisdictional rulings. In the 24 such majority rulings she made during the period, she granted access or recognized federal court jurisdiction over the matter in about two-thirds of such cases.
And finally, her majority opinions have generated some dissents but not enough to indicate that her majority opinions have been completely out of line with circuit or Supreme Court precedent or preferences, according to Lindquist.
"In the 186 decisions on the merits, I count eight dissenting opinions (or about 4 percent)," she said. "During the same period, two of her published opinions were reversed by the Supreme Court, one vacated for reconsideration in light of a subsequent Supreme Court decision, and two affirmed. This record is unremarkable."
Visit 'The Choice' for The National Law Journal's ongoing coverage of the confirmation process of Sonia Sotomayor as U.S. Supreme Court Justice.
