My take: Don’t underestimate her. Sotomayor’s prose may be stiff at times, but it is relentlessly logical, strong, and convincing.
I notice five key writing traits:
1. An instinct for the jugular.
I agree with those who find Sotomayor’s doctrinal analysis to be plodding. What do you make, for example, of this 51-word whopper?
Between the time that we decided Planned Parenthood 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.4
A swifter judge might have written something like this: “After Planned Parenthood but before this action, the Supreme Court criticized the practice of presuming standing and then proceeding directly to the merits.”
That said, when Sotomayor is concluding and dissenting, she shows an instinct for the jugular that helps her bring to life the practical consequences of outcomes she disfavors.
Take her dissent in a case involving an NYPD officer fired for mailing racist literature from his home:
The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially . . . disrupt the government’s activities.”5
With a touch more sarcasm, this biting critique could have come from Justice Scalia’s playbook.
In another dissent, Sotomayor strikes again, sounding much like Justice Breyer:
The Religious Freedom and Restoration Act (“RFRA”) is not relevant to this dispute. First, appellees have unambiguously indicated that they do not seek to raise a RFRA defense, and the statute’s protections, even if otherwise applicable, are thus waived. Second, the statute does not apply to disputes between private parties. Third, we should affirm the judgment of the district court without reaching the RFRA issue on the ground that Supreme Court and Second Circuit precedent compels a finding that the Age Discrimination in Employment Act does not govern disputes between a religious entity and its spiritual leaders. The majority’s opinion thus violates a cardinal principle of judicial restraint by reaching unnecessarily the question of RFRA’s constitutionality. For these reasons, I respectfully disset.6
2. A disciplined approach to authorities
Some critics find Sotomayor’s treatment of authorities tedious and bureaucratic. I call it thorough and even bold.
Consider, for example, her dissent in Croll v. Croll—a dispute involving the “rights of custody” under the Hague Convention. Sotomayor offers a tour-de-force through the courts of Australia, England, Israel, France, and Canada.7
Her treatment of individual cases is a model as well. Unlike many federal judges, she links her authorities to broader points of law through consistently concise, parallel parentheticals that make her analysis polished and convincing.8
3. A rigorous analytical flow
Many judges write choppy prose that fails to show readers how each point relates to the next. Sotomayor, by contrast, is an experienced guide. In this excerpt from the Hague Convention case, notice how the underlined words walk you through her analysis:
For the reasons explained above [. . .], I am unpersuaded by the argument that ne exeat clauses in permanent non-removal orders relate solely to access rights, the view endorsed by the Canadian Supreme Court. Nor do I consider significant the Canadian Supreme Court’s emphasis on the distinction between interim and permanent custody orders. To be sure, a court issuing an interim custody order has a strong interest in preventing a child’s removal before it has the opportunity to make its final custody determination. But nothing in the Convention’s language or official history supports the notion that this interest is any more important than the court’s interest in enforcing the final custody order once issued. The dichotomy between an interim and permanent custody order is, therefore, for the purposes of the Convention, a distinction without a difference.9
4. Ricci the outlier?
I don’t know whether Sotomayor the nominee regrets her three-judge panel’s infamous per curiam paragraph in the controversial New Haven firefighter case. But I hope that Sotomayor the judge and writer regrets it.
The paragraph is both ungrammatical (you don’t “score highly” on an exam any more than you would “score lowly” on one) and tautological (surely a defendant is not immune from Title VII scrutiny simply because it claims it was “trying to fulfill its obligations” under the statute).
In fact, I am baffled that the same woman who endorsed this paragraph wrote so many painstakingly well-reasoned opinions in cases with far less import.
5. A fondness for stale, trite phrases
Finally, I’m afraid that Sotomayor has never met a legal cliché she didn’t like. Some of the worst offenders include such law-school chestnuts as these:
- “even assuming arguendo”
- “as a threshold matter”
- “the instant action”
- “pursuant to”
- “notwithstanding the fact that”
She’ll need to freshen up her writing to match the style of the current Court. If nothing else, she should discard her beloved “the instant case”— a hated expression of her soon-to-be-benchmate Justice Scalia.
- Stephanie Mencimer, “Sonia Sotomayor’s Prose Problem,” Mother Jones (June 3, 2009).
- Tucker Carlson and Ana Marie Cox, “Don’t Ask, Don’t Tell, Wise Latina, More,” The Washington Post (June 8, 2009).
- Sonia Sotomayor, “My Ethnic Identity,” speech at Cornell Law School (October 15, 2007).
- Center for Reproductive Law and Policy v. Bush, 304 F.3d 183, 193 (2002).
- Pappas v. Giuliani, 290 F.3d 143, 147 (2002).
- Hankins v. Lyght, 441 F.3d 96, 109 (2006).
- Croll v. Croll, 229 F.3d 133, 150 (2000):
Most foreign courts addressing this question have interpreted the notion of “rights of custody” broadly in light of the Convention’s purpose and structure. The Family Court of Australia, for example, has characterized the “spirit of the Convention” as ensuring “that children who are taken from one country to another wrongfully, in the sense of in breach of court orders or understood legal rights, are promptly returned to their country so that their future can properly be determined within that society.” Accordingly, the court held that the custody order at issue—which provided reciprocal ne exeat rights for each parent—created “rights of custody” in the otherwise non-custodial father.
The English Court of Appeal has employed a similarly broad reading of the Convention, holding that Article 5 “may in certain circumstances extend the concept of custody beyond the ordinarily understood domestic approach” so as to ensure “that within its scope [the Convention] is to be effective.” . . . .
- Center for Reproductive Law and Policy, 304 F.3d at 196:
Plaintiffs cannot make their First Amendment claims actionable merely by attaching them to a third party’s due process interests. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809 (D.C.Cir.1987) (explaining that because due process rights “do not protect a relationship” between a third party and a litigant, a plaintiff “could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court”).
- Croll, 229 F.3d at 152.