Justice Sotomayor

Linda Greenhouse on Supreme Court Nominations and the Gun Lobby

Matthew L.M. Fletcher

Here.

An excerpt:

Back in 2009, when President Obama chose Judge Sonia Sotomayor as his first Supreme Court nominee, the White House expected that her compelling personal story, sterling credentials, and experience both as a prosecutor and, for 17 years, as a federal judge would win broad bipartisan support for her nomination. There was, in fact, no plausible reason for any senator to vote against her.

The president’s hope was Senator Mitch McConnell’s fear. In order to shore up his caucus, the Senate Republican leader asked a favor of his friends at the National Rifle Association: oppose the Sotomayor nomination and, furthermore, “score” the confirmation vote. An interest group “scores” a vote when it adds the vote on a particular issue to the legislative scorecard it gives each member of Congress at the end of the session. In many states, an N.R.A. score of less than 100 for an incumbent facing re-election is big trouble.

Creepy.

Slate on Justice Sotomayor’s “Lonely” Dissent in Jicarilla Apache Nation

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Sotomayor focused her dissent on the uncomfortable public policy implication of the majority opinion, namely, that the government could have legitimate reasons for managing the trust beyond, or perhaps even contrary to, the interests of the tribe without the obligation to turn over the evidence that proves it.  But the majority didn’t flinch. “Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be government,” Alito affirmed, “[I]t has been altered and administered as an instrument of federal policy.”

Forget ducks. For Sotomayor, this doesn’t even pass the smell test. The government acts as a trustee and calls itself a trustee, but it won’t abide by any of the traditional duties that go with being a trustee unless it affirmatively accepts them. In effect, the government is using the word trust without feeling obliged by its definition. “There’s no need to use the word,” Sotomayor tartly noted in oral arguments, “because it wouldn’t be a trust.”

The problem for Sotomayor is that the government can be a trustee, but it can’t only be a trustee, and the dual nature of its relationship undermines the trust law exception to attorney-client privilege. Her response is to say that the interests of the trustee and beneficiary should always be aligned; that justice cannot tolerate the casual discharge of a sacred trust, particularly one owed by the federal government to a vulnerable group of people. “Given the history of governmental mismanagement of Indian trust funds,” she says in her dissent, the “application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context.” Maybe so, but that is a moral reply to a legal conundrum. As a matter of law, Sotomayor would have been better off joining Ginsburg’s concurrence, which tried to provide a single exception to the traditional trust relationship. That she did not says a lot about the jurisprudential prerogatives of one of the newest members of the Court.

Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair.

Details on Justice Sotomayor’s Visit to UNM Law and Jemez Pueblo

Matthew L.M. Fletcher

Here.

Ponca Festival at National Museum of American Indian/Justice Sotomayor to Speak

Matthew L.M. Fletcher

Here:

The Smithsonian’s National Museum of the American Indian presents “We Are a People: The Ponca Journey,” a free two-day festival featuring music, dance, play readings, a film screening and panel discussions with the Ponca Nation of Nebraska Friday, Oct. 7, from 11 a.m. to 10 p.m., and Saturday, Oct. 8, from 10:30 a.m. to 5 p.m.

In 1879, a full 75 years before the Supreme Court issued its monumental decision in Brown v. Board of Education, a Ponca chief named Standing Bear stood up, extended his hand, and made a speech: “This hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both.” Standing Bear’s argument convinced the federal judge to declare for the first time in the nation’s history that Native Americans are “persons” under federal law, a declaration that contradicted decades of Indian policy.

The Ponca Tribe of Nebraska invites the public to celebrate this monumental civil rights decision with dance and song, as well as panel discussions with tribal elders whose grandparents traveled the Ponca Trail of Tears. Visitors can listen as they share the story of their nation’s survival, from the tribe’s removal to Indian Territory in 1879 to its termination in 1962 to its restoration as a federally recognized tribe in 1990.

The festival kicks off Friday at 11 a.m. with the East Coast premiere of “Standing Bear’s Footsteps,” a 60-minute documentary that incorporates oral histories, rare photographs and contemporary interviews with members of the Ponca Nation to recount the historic trial of the famous Ponca chief. After the screening, the film’s Emmy-nominated and Peabody award-winning producer, director and writer, Christine Lesiak, will join several citizens of the Ponca Tribe of Nebraska to answer questions about the documentary and Ponca history.

On Friday at 1:30 p.m. in the museum’s Rasmuson Theater, Native law scholars will join the museum’s director, Kevin Gover (Pawnee), for “Fact or Fiction? The United States Courts’ Use of History to Shape Native Law Jurisprudence,” a symposium on the origins of American Indian laws and policies in U.S. courts.

The symposium will be webcast live at www.AmericanIndian.si.edu/webcasts. Following the symposium, the public is invited to a reception at 6 p.m. in the museum’s Potomac Atrium featuring Ponca songs and welcoming remarks from Gover, Ponca tribal chairwoman Rebecca White and U.S. Supreme Court Associate Justice Sonia Sotomayor.

That evening, at 7:30 p.m., Metropolitan Community College and the Great Plains Theatre Conference will present a staged reading of Mary Kathryn Nagle’s play, Waaxe’s Law—a dramatic re-enactment of the Trial of Chief Standing Bear and Judge Dundy’s seminal ruling. Actors include Louis Headman, an honored elder of the Southern Ponca Tribe of Oklahoma—one of only five people alive today fluent in the Ponca language. A talk-back panel will follow, featuring Headman, White, playwright/attorney Nagle (Cherokee) and Judge Laurie Smith Camp, U.S. District Court, District of Nebraska.

On Saturday, there will be a reading and discussion with Joe Starita, a journalism professor at the University of Nebraska at Lincoln and author of “I Am a Man”: Chief Standing Bear’s Journey for Justice, a work of non-fiction that provides historical background of the famous Ponca chief. The festival closes with a panel discussion Saturday at 4 p.m. in the museum’s Rasmuson Theater featuring tribal elders who will discuss the Ponca Nation’s stories and culture.

Sponsors of the festival include the Nebraska Commission on Indian Affairs, Native American Public Telecommunications, Creighton Law School, Metropolitan Community College and the Great Plains Theatre Conference. For the full schedule of events, click here.

Andrew Cohen on Justice Alito’s Visit to Pine Ridge

Matthew L.M. Fletcher3 Comments

Here is the short article in the Atlantic. Here is the Rapid City Journal news article detailing the visit to Pine Ridge, which came at Judge Karen Schreier’s invitation and included a visit to Red Cloud Indian School. Chi-miigwetch to everyone who sent it along.

Mr. Cohen offered three questions he would have asked Justice Alito at Pine Ridge if he could have gone. One on Arvo Mikkanen’s nomination; one on Justice Sotomayor’s dissent in Jicarilla; and one on Factbound and Splitless. He has previously written on all three issues: The Mikkanen nomination here and here; the Jicarilla case here; and Factbound and Splitless here.

Speculation on the Delay in Issuing the U.S. v. Tohono O’odham Nation Opinion from SCOTUSBlog

Matthew L.M. Fletcher
Recall our speculation on the seeming delay in the issuance of the TON opinion? Here is some more speculation from today’s SCOTUSblog Live Blog.
9:50
Tom:

It’s possible that they won’t be the authors of those two decisions, however.  One might have lost a majority opinion.
9:51
Tom:

For example, Justice Sotomayor might have lost the majority in United States v. Tohono O’odham Nation.
9:51
Tom:

In that case, which took longer than expected to decide (it was the next-longest-outstanding November case), she wrote a detailed concurring opinion that would have decided the case more narrowly.  Justice Kennedy ended up writing the majority opinion.

Onion: Justice Sotomayor Misses SCT Oral Argument Due to Jury Duty

Matthew L.M. Fletcher

From the Onion via How Appealing:

WASHINGTON—Recently appointed justice Sonia Sotomayor told reporters that, despite making dozens of excuses, she was selected for jury duty this week, causing her to miss a landmark Supreme Court case addressing campaign finance reform.

“I probably threw away four of those letters before I got one that said I had to appear or ‘face serious penalties,’ whatever that means,” said Sotomayor, who was forced to appear at a nearby municipal courthouse Monday. “I just got a new job, for Christ’s sake. I can’t afford to be sitting in some dingy courtroom all day. God, what a waste of time.”

“The guy is totally guilty, by the way,” Sotomayor continued. “You can tell just by looking at him.” Continue reading →

Race and the Roberts Court

Matthew L.M. Fletcher

Justice Sotomayor’s first oral argument as a sitting Supreme Court Justice is this morning. Surely, people will be watching to see how well she holds her own amongst the Scalias, Robertses, and Ginsburgs of the Court.

But the real question we propose today may not be answered for years — will the presence of a second person of color on the bench alter the Court in some significant fashion? We think it will.

Consider that the only person of color on the Court is Justice Thomas. While we’re not here to insult him, even he must acknowledge that his views on race deviate in significant ways from the good majority of American people of color. In other words, the Supreme Court’s white Justices have not had anyone in their midst who speaks from the point of view of most people of color.

Justice Scalia and others have said that Thurgood Marshall’s views on race informed the remainder of the Court, even if he spent his final years on the bench largely in dissent. It has been since the early 1990s since anyone has taken up the mantle of Justice Marshall to inform the Court’s judgment on race. We expect Justice Sotomayor, in some singificant if subtle ways, to do this. One can only imagine Justice Sotomayor’s take on the Voting Rights Act case from last Term in conference, when the only other person of color in the room was advocating for its complete evisceration.

The Roberts Court seems to be concerned about the change in membership on the Court more than usual, if the C-SPAN interviews are any indication. For the first time in almost two decades, there may be a Justice who will speak truth to power in the race context. These are exciting times.

Ronald Dworkin on the Sotomayor Confirmation Hearings in the N.Y. Review

Matthew L.M. Fletcher

From the N.Y. Review (via How Appealing):

It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. She is an excellently qualified nominee and will make a careful, thorough justice.[1] She demonstrated her clarity and technical skill in correcting several senators’ misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them. Her personal history is remarkable—from a poor South Bronx family she became a Princeton summa graduate and an editor of TheYale Law Journal. Her long judicial and extrajudicial record suggests that she is markedly less driven by ideology and more respectful of technical legal argument than Chief Justice John Roberts and Justice Samuel Alito seemed before their nominations and have shown themselves to be once on the Court.

Her hearings could therefore have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

The constitutional provisions that provoke the most controversial Supreme Court decisions are drafted in abstract moral language: the Constitution refers to “due process of law,” “equal protection of the laws,” “cruel and unusual” punishment, the “right” of free speech, the “free” exercise of religion, and the “right” to “bear arms,” for example. Some lawyers, including Justices Antonin Scalia and Clarence Thomas, insist that we can interpret these clauses and apply them to concrete contemporary cases by asking a historical question: What did those who wrote that language, and the citizens they spoke to, assume the clauses meant? But that conservative theory can itself be defended only by appealing to highly controversial political principles about the nature of democracy and about the role of intention in constitutional interpretation. The theory is unhelpful anyway because the authors of the abstract clauses almost certainly intended to say what their words naturally mean: they meant to forbid any law that denies equal status to all citizens, which is very different from forbidding any law they themselves thought denies equal status.

The clauses, read literally, therefore require interpreters to develop what they believe to be the best theory of equal citizenship, which is not necessarily the theory of the framers. The same Congress that approved the equal protection clause in 1868 itself segregated the public schools of the District of Columbia, but no one now supposes that the equal protection clause allows segregation.

The Supreme Court’s past decisions do act as precedents that limit contemporary interpretation. But these past decisions often themselves require interpretation. In 1937 Justice Benjamin Cardozo laid down a test for interpreting the due process clause: he said it protects those rights that are “of the very essence of a scheme of ordered liberty. To abolish them is…to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'”[2] What is now the leading precedent on abortion rights declares that constraints on abortion are unconstitutional if they impose an “undue burden” on pregnant women.[3] Lawyers and judges disagree markedly about what is essential to ordered liberty, how American traditions and conscience are to be understood, and what constraints on abortion are undue. And justices may ignore past decisions, openly or covertly, as Roberts and Alito, who themselves promised fidelity to the law, have done brazenly since their confirmations.[4]

So a genuine constitutional philosophy must be a system of different kinds of political principle that guide a judge in interpreting the abstract constitutional clauses and the past decisions of other judges. It must include some at least rough theory about the best conception of democracy, including the best understanding of the individual rights that must be secured by law, as a matter of justice, if government by majority rule is to be fair. I emphasize that these are principles held as a matter of moral conviction; they are not prejudices of political partisanship or sympathy for or identification with any class or racial or ethnic group. The difference is crucial: a judge will try to justify his principles by some more general theory of political morality and he will respect their demands even when they cut against his partisan preferences or loyalties. The difference was made stark by the Court’s shameful decision in Bush v.Gore, when five conservative justices declared George W. Bush president on grounds that they had themselves rejected in past cases and that they conceded would have no application in future ones.[5]

Continue reading →