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June 2009 Archives

James R. Copland

[Originally published in the Washington, D.C. Examiner, 5-19-09.]

With Supreme Court Justice David Souter retiring, the conventional wisdom is that President Obama's imminent selection of a replacement will do little to upset the balance on the Supreme Court. Underlying this view is the fact that Justice Souter has been a stalwart on the "left" wing of the Court in hot-button cases such as those involving race discrimination and abortion rights.

Typically, however, the conventional wisdom is wrong. It is somewhat silly to look at the Supreme Court's composition today--a snapshot in time--in assessing the impact of a lifetime judicial appointment.

But even in the short run, once one looks past the headline cases, Justice Souter has been a jurist with nuanced views not easily pigeonholed into a simplistic left-right dichotomy. For instance, Justice Souter has thoughtfully worked to constrain litigious excess in American society.

In a 2007 case, the Supreme Court supported dismissing a sweeping class-action lawsuit that had alleged antitrust violations by telecommunications companies. The lawyers pursuing the case had failed to offer any real facts supporting their claim, and Justice Souter's majority opinion clearly spelled out just how costly litigation can be when such unfounded lawsuits are allowed to proceed.

Regardless of whether a case actually gets to trial, Justice Souter noted, liberal discovery rules allow plaintiffs' lawyers to demand millions of documents and emails from corporate defendants.

Last year, Justice Souter authored another major opinion for the Court in litigation stemming from the catastrophic 1989 Exxon Valdez oil spill. Writing for a narrow five-justice majority, Justice Souter decided to limit the punitive damages a trial court jury had imposed against the oil company, above and beyond already-paid billions of dollars in actual costs. Even though extreme punitive awards are rare, Souter's opinion explained, litigation costs are driven by "outlier cases," in which such awards "dwarf" the damages levied to compensate actual injury.

The Exxon case concerned federal maritime law, a narrow field of jurisprudence, but Justice Souter's skepticism of outlier punitive awards has also placed him in the Court's slim majority in constitutional cases that place limits on state courts' ability to impose extreme punitive damages.

Nevertheless, it is emphatically not the case that Justice Souter has been predictably pro-defendant in cases involving civil litigation. He has typically supported a broad scope for state litigation when it comes into conflict with federal regulation. He has also displayed a rather expansive view of federal securities litigation and employment discrimination lawsuits.

While I and other observers might object to some of Justice Souter's views on these issues, his even-handedness contrasts sharply with a jurisprudence founded on "empathy," the President's stated first criterion for picking a Supreme Court justice.

In many cases, it is impossible notto empathize with the plaintiff whose case makes it all the way to the high court--such as those whose lives and property were devastated by the Valdez oil spill. It is hardly surprising that Alaska's then-little-known governor, Sarah Palin, objected vigorously to the Supreme Court's decision.

But unlike politicians, Supreme Court justices are called upon to weigh laws dispassionately. A judicial approach that tries to be neutral--tilted neither for nor against the "powerless" or the "powerful" in the case at hand--is far less likely to create legal rules with sweeping and costly unintended consequences.

In many cases, rather than being a predictable liberal, Justice Souter has contributed to a sort of "centrist coalition" that seeks to balance access to the courts with sensible limits on excessive litigation.

Should President Obama's nominee have an empathy that leads her instead to side reflexively with plaintiffs in most civil litigation against corporations, the Supreme Court's laudable efforts to stem the most egregious abuses of legal process could be turned back.

James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute. He owns shares in telecommunications companies and in Exxon Mobil Corporation, parties in cases mentioned above.

Marie Gryphon

[Originally published in the Washington, D.C. Examiner, 6-2-09.]

President Obama's nomination of 2nd Circuit Court of Appeals Judge Sonia Sotomayor to replace the retiring Justice David Souter on the Supreme Court is barely a week old.

Yet, partisans are already setting the terms of the coming confirmation debate. Obama argues that Sotomayor's background, as a Latina with a hardscrabble childhood, will enable her to bring diversity and "empathy" to her duties on the high court.

Republicans object that Sotomayor's embrace of identity politics - most clearly in her occasionally cringe-inducing remarks at the University of California, Berkley - reveals a judge who cannot separate her ethnic perspective or political views from the impartial demands of the law.

Neither camp is likely to dwell on Judge Sotomayor's opinions in the cases that follow because they don't advance either of these narratives. Obama lauds Sotomayor as a moderate jurist, but don't expect him to offer any specific examples that might annoy NOW or the ACLU.

By the same token, expect Republicans to focus heavily on her vote to affirm, without analysis, a trial court's dismissal of an eyebrow-raising reverse discrimination suit in Ricci v. DeStefano as proof of her blind commitment to advancing a liberal political agenda at the expense of the rule of law.

But Judge Sotomayor has published hundreds of judicial opinions, and the public deserves to hear about more of them. Here are three cases addressing public religious displays, the rights of criminal defendants, and protections for politically unpopular speech that won't gladden progressive hearts or sharpen conservative fears.

Mehdi v. United States Postal Service: Two Muslim plaintiffs challenged the constitutionality of holiday decorations at various post offices, which featured Christmas trees and menorahs, while omitting Muslim religious symbols.

As a trial court judge, Sotomayor dismissed the complaint based on a careful interpretation of the Supreme Court's deeply confusing precedents related to religious holiday displays.

She also held that the Postal Service "is essentially a commercial enterprise," and therefore post offices should not be considered public forums for religious expression.

United States v. Howard: Three criminal defendants argued that police officers tricked them into leaving their cars parked on public roads and then illegally searched the vehicles while they were unattended.

The trial judge in the case agreed with the defendants and barred the evidence obtained in the searches from court. Judge Sotomayor wrote the appeals court opinion that reversed the trial court's decision.

She upheld the searches as constitutional on an expansive reading of Supreme Court cases that create an "automobile exception" to the usual requirement that police obtain a search warrant.

Pappas v. Giuliani: A New York City police officer was fired for anonymously mailing white-supremacist propaganda to various charities that had solicited him for contributions.

A majority of the court held that the firing was justified. No issue is more salient to minority communities than racism among law enforcement officers, but Judge Sotomayor dissented, arguing that Officer Pappas had a constitutional right to express racist views in his off hours.

"To be sure, I find the speech in this case patently offensive, hateful, and insulting," she wrote, "The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like."

Of course, these cases don't show that Judge Sotomayor is a closet conservative, but neither does her record support claims that she lawlessly embraces a radical agenda on the bench.

If confirmed, Judge Sotomayor will probably join the Supreme Court's liberal wing most of the time, but her jurisprudence should not be carelessly stereotyped. Every senator should examine her entire record before deciding whether she is fit to serve.

Marie Gryphon is a senior fellow with the Manhattan Institute's Center for Legal Policy. She holds a JD from the University of Washington School of Law and is a PhD candidate in public policy at Harvard University.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.