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Sotomayor, Word by Word
Supreme Court nominee's dense writing style works through every detail
The National Law Journal
June 24, 2009
Judge Sonia Sotomayor regularly sends her law clerks to the records office at the 2nd U.S. Circuit Court of Appeals. There, they gather up the entire history of cases on which Sotomayor is writing an opinion or dissent -- all the motions in limine, the briefs on summary judgment, everything that came up from the district court.
Not many of Sotomayor's fellow judges do the same thing, said Melissa Murray, who clerked for her in 2003 and 2004. "There were very few cases where we had to fight with other chambers to get the record," recalled Murray, who now teaches law at the University of California, Berkeley School of Law.
Sotomayor's preoccupation with the record usually finds its way into her writing and offers partial explanation for what some see as a weak spot in her resume: those long, plodding opinions that review every moment in the case history and cite, explore and dispose of every point made in the briefs and arguments. Her thoroughness makes for a sometimes leaden writing style that has emerged as a point of criticism now that she has been nominated to the U.S. Supreme Court -- even though the writing of some current justices also fails to soar. David Souter, the man she would replace, is a master of the triple negative and has a quaint, almost 19th century prose style that pleases some and bores others.
Supporters have rallied to Sotomayor's defense. "She's very thorough in addressing all the issues, rather than sweeping the chess pieces off the table," said fellow 2nd Circuit Judge Robert Katzmann. He called that a good thing: "There is a transparency, and no mystery, to her thought process."
But what Katzmann sees as transparency looks like smoked glass to critics.
'NOT ALWAYS A PLEASURE'
Stephanie Mencimer in Mother Jones magazine panned Sotomayor's writing style as "an impenetrable legal opus." In The New York Times, Adam Liptak was a shade more diplomatic when he wrote that her opinions are "not always a pleasure to read." Liptak also asserted that her opinions "reveal no larger vision, seldom appeal to history and consistently avoid quotable language."
Indiana University Maurer School of Law -- Bloomington professor William Popkin, author of a 2007 book on the evolution of judicial opinion writing, took a look at some of Sotomayor's decisions at the request of The National Law Journal. His verdict: "Her approach is to touch every base with a legalistic and analytical style. This way of writing will not bring along converts from either the public or the broader legal profession, outside of the area of specialty with which the case deals. Nor will it stand up to [Antonin] Scalia, as [John Paul] Stevens or [Stephen] Breyer do."
Former federal trial judge Paul Cassell said he does not think Sotomayor's methodical approach gives "exceptional guidance" to lower court judges. "Someone with a better style, who can cut through the morass and see the key issue, might offer clearer guidance." Cassell, now a law professor at the University of Utah S.J. Quinney College of Law, said he has reviewed Sotomayor's decisions and didn't see "any flashes of light or touches of brilliance."
Take, for example, this sentence from Sotomayor's 2007 ruling in Riverkeeper Inc. v. Environmental Protection Agency, a win for environmental groups that the Supreme Court reversed this spring (pdf): "For the reasons that follow, we conclude that the statute's 'best technology available' standard permits cost-effectiveness considerations to influence the choice among technologies whose performance does not essentially differ from the performance of the best-performing technology whose cost the industry reasonably can bear, but that the statute does not permit the EPA to choose BTA on the basis of cost-benefit analysis."
Or this, from her 2002 ruling in Center for Reproductive Law and Policy v. Bush, upholding the Bush administration's policy denying funds to nongovernmental organizations promoting abortions worldwide: "Between the time that we decided Planned Parenthood [ Federation of America Inc. v. Agency for International Development in 1990] and the filing of the instant action, the Supreme Court issued a decision in which it criticized the practice whereby a court proceeds directly to the merits of a case while assuming arguendo that the plaintiffs have constitutional standing to bring the suit."
