Legal News

The Judge Speaks: A Sotomayor Sampler

By Ashby Jones

For now, let’s get you up to speed on some of Judge Sotomayor’s more notable rulings, decisions and comments.

The now infamous Duke speech: For starters, there’s the speech she gave at Duke back in 2005. Click here for the YouTube video. The controversial quote: “Court of appeals is where policy is made. And I know this is on tape and I shouldn’t say that because we don’t make law . . . I know. . . I’m not promoting it, I’m not advocating it . . . ”

In that same speech, Sotomayor explained the difference between judging at the trial court level and judging at the appeals court level: “When you’re on the district court, you’re looking to do justice in the individual case, so you’re looking much more to the facts of the case than you are to the application of the law because the application of the law is not precedential, so the facts control. On the court of appeals, you’re looking to how the law is developing so that it will then be applied to a broad class of cases. So you’re always thinking about the ramifications of this ruling on the next step of the development of the law.”

Workplace Discrimination; Ricci v. DeStefano: In Ricci v. DeStefano, a group of white firefighters in New Haven, Conn., challenged the city’s decision not to use an employment test for use in promotions when the use of the test results would have had a disproportionate benefit to white applicants over minority applicants. Sotomayor was part of a three-judge panel that upheld the city’s determination, calling it “thorough, thoughtful and well-reasoned.”

In January 2009, the Supreme Court agreed to hear the case. A decision is due next month.

The First Amendment; Pappas v. Giuliani: One of Judge Sotomayor’s more controversial First Amendment cases came down in 2002. The case, Pappas v. Giuliani (click here for the opinion), involved whether an NYPD employee was properly terminated from his job after mailing bigoted and racist material and comments in response to requests for charitable contributions.

On appeal, two judges on the three- judge panel ruled that Pappas could be rightfully terminated. In dissent, Judge Sotomayor found fault with the majority’s decision to award summary judgment to the police department. While she found the speech “offensive, hateful and insulting,” she ultimately found the NYPD’s concerns over race relations “so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

The Second Amendment; Maloney v. Cuomo: A New York attorney challenged a state law prohibiting the possession of a so-called chuka stick, a weapon used in martial arts, claiming the ruling violated his Second Amendment right to bear arms.

The district court denied the attorney’s claim, ruling that the Second Amendment doesn’t apply to the states. On appeal, the three-judge panel, which included Judge Sotomayor, agreed with the lower court, ruling that an 1886 Supreme Court ruling called Presser v. Illinois dictated the outcome. It is “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on one’s right to bear arms.

Maloney’s lawyers have said they might seek Supreme Court review on the matter.

Environmental Law; Riverkeeper v. EPA: (This recap comes courtesy of our friends at the WSJ’s Environmental Capital blog). In 2007, Sotomayor sided with the fishes and against power companies and the Environmental Protection Agency.

In Riverkeeper vs. EPA, she argued that the EPA can't weigh costs and benefits in deciding what the "best technology" is for protecting fish that get sucked into power plants. In a nutshell, she ruled, there's no point in tallying up the marginal costs of extra environmental protections when Congress has already decided they're worth it.

From her 2007 decision:

The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress's conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.

In April, the Supreme Court overturned that decision in a 6-3 ruling; justice David Souter, who Ms. Sotomayor would replace, was one of the dissenters.

Full post as published by Law Blog - WSJ.com on May 26, 2009 (boomark / email).