Eight hours later, and it’s already become an old canard: Judge Sonia Sotomayor’s elevation to the High Court won’t affect its balance one bit. It may be an effective talking point—the Left seems to think so—but it isn’t true.
Consider just one area of law, business law. As concerns businesses and economic matters, Justice David Souter often rejected the activist “empathy” standard promoted by President Barack Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and the rule of law.
Judge Sotomayor, however, does not always evince this restraint. In case after case, her “empathy” instinct has run amok. Of the seven of the cases in which her decisions have been reversed or rejected by the Supreme Court (out of the eight total that the Supreme Court has reviewed), six concern business law. A survey of those cases suggests that Sotomayor harbors antipathy for businesses:
- In Correctional Services Corp. v. Malesko (2001), Sotomayor authored an opinion extending Bivens claims (for government violations of constitutional rights) to private actors—a move that could expose businesses to a flood of vague claims and massive damages. The Supreme Court reversed that decision, rejecting the logic wholesale.
- In Swedenburg v. Kelley (2004), Sotomayor joined an opinion holding that New York had the power to discriminate against shipments of wine from out-of-state—the sort of beggar-thy-neighbor law that the Framers recognized would undermine national markets. The Supreme Court reversed, finding that the law discriminated against interstate commerce.
- In Dabit v. Merrill Lynch (2005), Sotomayor authored an opinion holding that securities class actions—an area known to be a morass of frivolous claims that other courts regard with great skepticism—were not preempted by federal law. Once again, the Supreme Court reversed that decision.
- In Knight v. Commissioner (2008), the Supreme Court actually upheld a Sotomayor decision concerning tax law, while rejecting her reasoning.
- In Entergy v. Riverkeeper (2007), Sotomayor authored an opinion holding that the Environmental Protection Agency could not weigh costs and benefits when deciding which technologies would be necessary to reduce the environmental impact of warm water discharged from cooling towers—instead, utilities would have to adopt the latest, most expensive technology in every instance. The Supreme Court reversed that decision, finding that it was reasonable for the EPA to consider costs and benefits.
- In New York Times v. Tasini (1999), Judge Sotomayor (then a district judge) authored an opinion holding that copyright law allowed newspapers and magazines to republish freelancers’ articles in electronic databases, even though they had not paid for this right. Many described the decision as a great blow for intellectual property rights. Fortunately, the Second Circuit, followed by the Supreme Court, found nothing in the statute to support this view.
In other cases not reviewed by the Supreme Court, Judge Sotomayor has consistently ruled against businesses and employers. For example, in a column today, Prof. Richard Epstein describes a recent takings case heard by Sotomayor. The panel on which she sat affirmed, in all of one sentence, the dismissal of a suit challenging a government taking of land slated for business development after the developer failed to pony up $800,000 to another developer chosen by the city for the privilege of building a pharmacy on his own land. “American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court,” writes Epstein.
These cases are probably not anomalies. Judge Sotomayor’s anti-business bias is, in fact, well known. As legal scholar Michael Greve explains:
She is among the most aggressively pro-plaintiff, anti-business appellate judges in the country. Her rulings in class actions, preemption cases, and other commercial matters are of a piece with her contempt for property rights (noted by Richard Epstein) and her anti-employer bias in discrimination cases (a matter of notoriety).
Of course, it is possible that Sotomayor is motivated less by an anti-business animus than by law, and that the businesses which come before her court have legitimately led to her lopsided record. But so many who have appeared before her seem to say otherwise. This issue deserves scrutiny in the weeks ahead.
For now, there is reason to be concerned. Justice Souter often supplied the crucial fifth vote in business law cases coming before the High Court. From what we know, Judge Sotomayor stands to upset the balance of the Court and disrupt the law that governs economic affairs.
Update: According to the Wall Street Journal, “Her record in more than 4,000 cases, including those from 11 years on the Second Circuit, shows her occasional siding with corporate defendants or diverting from a standard liberal position.” (Emphasis added) Does this justify the Journal’s subhed, “Despite Democratic Bent, Judge Has Sided With Corporate Defendants”? Isn’t the implication that a true Democrat judge would never side with a party that happens to be a corporation? If so, that’s a really low bar for applying the law neutrally and impartially.