When legendary appeals judge Learned Hand did not like how the U.S. Supreme Court disposed of one of his cases in 1954, he protested privately to Justice Felix Frankfurter. “I felt…a sense of professional incapacity,” Hand confessed in a letter, according to Gerald Gunther’s 2004 biography of Hand. “It does serve as a warning…that what may seem to oneself [entirely clear] may seem to others plain tosh” or nonsense.

Now Supreme Court nominee Sonia Sotomayor, a judge who like Hand served on the U.S. Court of Appeals for the 2d Circuit, finds herself under intense scrutiny for the handful of times that the court reversed her decisions. Reversal is a common if sometimes painful part of life for appellate judges, but rarely has it been scrutinized so closely as last week.

Only five of the 232 opinions Sotomayor has written in her 11 years as a 2d Circuit judge have been reviewed by the Supreme Court. Of those five, justices overturned three — including one environmental and one prison abuse case that are drawing attention. With a fourth, the Supreme Court upheld her bottom line judgment, but repudiated her reasoning. The fifth case was upheld.

“The poor quality of Sotomayor’s decisions is reflected in her terrible record of reversals by the Supreme Court,” Wendy Long of the conservative Judicial Confirmation Network said soon after President Obama announced his pick on May 26. Ed Whelan of the conservative Ethics and Public Policy Center said, “Although I’m wary of relying on statistics alone, the lopsided margins against her ought to provide a warning signal about the quality of her work.” In the five cases overall, her decisions won 12 votes from the high court, with 32 votes against.

Another case that many think will be reversed has also been scrutinized: the cursory and unsigned opinion Sotomayor joined in Ricci v. DeStefano upholding the city of New Haven, Conn.’s action canceling the results of a promotion exam for firefighters because not enough minorities passed.

But supporters and scholars say that reversal rates — especially with such a small number of cases — don’t show much at all about the quality of her decisions or how the Court regards her work.

“You can learn literally nothing about an appellate judge from reversal rates,” said Temple University Beasley School of Law professor David Hoffman, a specialist in empirical legal studies. Many cases are not appealed, and of those that are, the high court accepts a hard-to-predict 1%. Hoffman also argued that if a judge rules erratically in a case, the parties might feel compelled to settle instead of appealing, keeping a judge’s most objectionable decisions from review by the Supreme Court. “You might be able to say she is out of sync with the Court in some areas, but not that she is wrong or that she is defying the Court,” added University of Pittsburgh School of Law professor Arthur Hellman, an expert on appeals courts.

Other indicia of her work include how often her cases are mentioned in other court opinions (Sotomayor’s count was a fairly high 703, according to a recent study by University of Chicago Law School professor Eric Posner), and how often a judge’s law clerks are picked by the high court. On that score, only one of her clerks, Ginger Anders, has also clerked at the Supreme Court. That’s lower than the most well-known feeder judges, but hundreds of appeals court judges have sent none of their clerks to the Marble Palace.

REVERSALS IN CONTEXT

Last week, though, the hot topic was Sotomayor’s reversal rate. The White House fought back, letting it be known that the reversal rate for then-3d Circuit judge Samuel Alito Jr. was 100% when President George W. Bush nominated him in 2005 — a fact that was barely noted and did not count against him. Sotomayor supporters also note that, overall, the Supreme Court reverses about three-fourths of the cases it reviews. For the 2d Circuit, the numbers are similar. Statistics compiled annually by Martin Flumenbaum, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, for the New York Law Journal indicate that, since 2002, the Supreme Court has taken up 35 2d Circuit cases and reversed or vacated 26, or about 74%.

“The numbers put her right in the wheelhouse. You read her opinions, and they’re just not ‘out there,’ ” said Thomas Goldstein of Akin Gump Strauss Hauer & Feld, who analyzed Sotomayor’s rulings extensively on his SCOTUSblog.

But in two of her cases that were reversed, critics say she did go far afield to reach a desired result. In Riverkeeper Inc. v. EPA , Sotomayor rejected the use of cost-benefit analysis in determining how to reduce the danger to fish of power plant cooling-intake structures, ruling that the Clean Water Act prohibited that kind of weighing.

Lawyers who opposed Sotomayor’s ruling declined to speak on the record, but one said it places her “five or ten steps to the left” of where the current court is on environmental regulation. A dissent by Justice John Paul Stevens, joined by Ruth Bader Ginsburg and David Souter — the man Sotomayor would replace — approved her reading of the Clean Water Act.

“What everyone is missing is that this was a very big case, with about 15 different issues, and the Supreme Court only took one,” leaving the rest of her decision untouched, said Reed Super of the Super Law Group in New York, who argued at the 2d Circuit on behalf of Riverkeeper, an environmental group. “She was very engaged, and asked the first question,” Super recalled. “Her ruling was very consistent with the plain language of the act.”

In Malesko v. Correctional Services Corp. , Sotomayor ruled in favor of an inmate in a privately run federal prison who was forced to walk up five flights of stairs in spite of a heart condition, leading to a heart attack. He filed a so-called ” Bivens action” seeking damages for a civil rights violation from the company that ran the prison. Bivens actions traditionally target individual federal officers, but she said expanding the doctrine served the policy behind the high court’s 1971 ruling in Bivens v. Six Unknown Fed. Narcotics Agents . The high court reversed her, 5-4.

“I remember telling the client I thought the Court would grant cert and we would get five votes,” said Carter Phillips in Sidley Austin’s Washington office, who represented the company in the case. “But I didn’t think her ruling was crazy or illogical, and I didn’t think we would pick up nine votes.”

Alan Morrison, then part of the Public Citizen Litigation Group team that represented the inmate, also noted Sotomayor’s ruling won four votes. “If you are an inmate and get the crap beaten out of you,” Morrison said, “it doesn’t make any difference if the prison is run by a corporation or a government.”

Tony Mauro can be contacted at tony.mauro@incisivemedia.com.


Sotomayor and the Supreme Court

2d Circuit decisions authored by Sonia Sotomayor that have advanced to the high court.

CASE DECISION AT THE SUPREME COURT
Riverkeeper v. Environmental Protection Agency (2007) Sotomayor wrote for unanimous panel that EPA could not use cost-benefit analysis in Clean Water Act determinations on power plant cooling water intake structures. Supreme Court by 6-3 vote in Entergy v. Riverkeeper ruled that cost-benefit analysis was permitted, though not required. Souter was among the dissenters.
Knight v. Commissioner of Internal Revenue (2006) Investment advisory fees for a trust are deductible on income taxes only if they exceed 2% of adjusted gross income, Sotomayor ruled for a two-judge panel, affirming the Tax Court. Supreme Court unanimously agreed in Knight v. Commissioner, but for different reasons, stating that the 2d Circuit reasoning “flies in the face of the statutory language.”
Dabit v. Merrill Lynch (2005) Sotomayor ruled for unanimous panel that Securities Litigation Uniform Standards Act does not pre-empt class actions in state court by investment brokers alleging ­fraudulent inducement to delay selling stocks. Unanimous Supreme Court overruled 2d Circuit in Merrill Lynch v. Dabit, finding that the law does pre-empt such suits.
Empire Healthchoice Assurance v. McVeigh (2005) For a 2-1 panel, Sotomayor ruled that a dispute between a health care plan and the executor of an insured employee arises under state law, so federal courts have no jurisdiction. By 5-4 vote in Empire Healthchoice Assurance v. McVeigh, the Supreme Court upheld Sotomayor’s decision.
Malesko v. Correctional Services Corp. (2000) Private companies that run prisons can be sued in Bivens actions claiming constitutional violations against inmates, Sotomayor ruled for a two-judge panel. Supreme Court reversed, 5-4, in Correctional Services Corp. v. Malesko, holding that Bivens actions can be maintained only against individual officers.