Michael C. Dorf

What is Sonia Sotomayor's Judicial Philosophy?

By MICHAEL C. DORF
Wednesday, June 3, 2009

Even in the short time since President Obama nominated Sonia Sotomayor to succeed David Souter as a Supreme Court Justice, a great deal of interesting information has been brought to light about her.

From Sotomayor's supporters, we have learned the following: She is the daughter of Puerto Rican immigrants; after her father's death, her mother, a nurse, raised her and her brother in a Bronx housing project; she was diagnosed with Type I diabetes when she was eight years old; she won scholarships to Princeton and then to Yale Law School, excelling at both institutions; she worked as a prosecutor, a private lawyer, a trial judge, and an appeals court judge; and she once "saved baseball."

Meanwhile, skeptics have made these complaints: Sotomayor can be harsh in her questioning of lawyers, especially when she thinks them ill-prepared; she said the court of appeals is "where policy is made"; and she once expressed the hope that the richness of her experience as a "wise Latina woman" "would more often than not" lead her to "reach a better conclusion than a white male who hasn't lived that life." These comments, the skeptics complain, show Sotomayor to be a judicial activist or even -- in the view of Newt Gingrich, Rush Limbaugh, and others -- a racist.

As edifying or not as all of this discussion may be, it overlooks the central question that Senators and interested citizens should be asking about Judge Sotomayor: What is her judicial philosophy? In this column, I shall explain what a judicial philosophy is, and begin to sketch the one that Judge Sotomayor holds.

Confirmation Ground Rules

Anyone who has ever watched a Supreme Court nomination hearing before the Senate Judiciary Committee knows that there are a number of unwritten ground rules.

Senators will attempt to discover, either directly or indirectly, the nominee's views about controversial issues. Depending on the nominee and the issues of the day, these will vary in prominence, but for Judge Sotomayor, we can expect the list to include her views about the constitutional limits on laws touching, respectively, upon abortion; affirmative action; capital punishment; the Pledge of Allegiance; Presidential power; and same-sex marriage.

Because forthrightly answering any of these questions will satisfy one group of Senators while alienating another, the nominee must dodge them all. There are four main techniques for doing so:

First, the nominee can claim that judicial ethics forbid her from discussing the merits of a case that may come before her, for fear of pre-judging the issue. This will typically lead a frustrated Senator to assure the nominee that he is not asking the nominee how she will vote on any particular case, but instead is seeking to discern her way of thinking.

At that point, the well-coached nominee will move on to the second technique: She will simply describe the current state of the law. "Roe v. Wade is the law of the land" is the sort of statement the nominee makes in this portion of the minuet. If she's really on her game, she will add that stare decisis--the principle of adherence to precedent--is a central feature of American law. At the end of her comments, the nominee has not really said anything about her own views, but has talked for some time about the subject raised by the question.

Third, the nominee will do well to talk about how all the cases that we now regard as really bad were wrongly decided, and how the ones we now regard as really good were rightly decided. Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States will all be derided as obtuse, poorly reasoned, and worse. Meanwhile, Brown v. Board of Education and Loving v. Virginia will be praised as reflecting the best of our judicial tradition, while Griswold v. Connecticut will be accepted, even by conservatives, as settled law.

To the frustrated Senators, the whole exchange will seem like, in the words of then-Senator Joe Biden, a "kabuki dance" that hides much more than it reveals. And that will, in turn, lead to questions about what might seem like the safest topic of all for the nominee: her "judicial philosophy."

A nominee's description of her judicial philosophy may appear to be as opaque as the rest of her answers, but only to the uninitiated. To the well-prepared and careful interrogator or listener, these answers can actually be quite revealing.

What is a Judicial Philosophy? The Thomas and Roberts Examples

There is no universally-accepted definition of a judicial philosophy. In his timely book The Next Justice, Christopher Eisgruber helpfully defines a judicial philosophy as a set of views about how judges should interpret the Constitution's abstract principles, which in turn will depend on a judge's ideological convictions and his or her "convictions about the proper role of courts within the American political system." I would add the caveat (with which Eisgruber would likely agree) that a judicial philosophy also includes views about how to interpret acts of Congress.

Once one has in mind what a judicial philosophy is, it is relatively straightforward to get a picture of the sort of Justice the nominee will be by listening carefully to his or her answers. Consider two statements, the first made by Clarence Thomas and the second made by John Roberts, during their respective confirmation hearings:

Thomas said that as a judge or Justice, "you want to be stripped down like a runner," and "shed the baggage of ideology." Roberts used a different sports metaphor. He said "I will remember that it's my job to call balls and strikes and not to pitch or bat." Although their answers were couched in language designed to appeal to the general public watching on television, Thomas and Roberts were each staking out a position--and the same position--on a crucial question of jurisprudence.

Each was espousing a view known as "formalism." As both Thomas and Roberts tacitly asserted, formalists believe that legal interpretation is a matter of finding the objective meaning of formal legal materials, such as the words of statutes and constitutional provisions. Views about politics are not relevant to this task, according to the formalist. In baseball there can be close calls: a pitch that is either just on, or just off, the outside corner of the plate. But just as the umpire in such a case still applies the rules of baseball to make his best judgment of the pitch, so too the formalist judge, even in hard cases, searches for the meanings of words. "Stripped down" of his ideology, the judge, in the view of the formalist, is simply a vehicle for the expression of the law.

Judge Sotomayor's Legal Realist Judicial Philosophy

Formalism is an appealing view because it purports to validate the rule of law, in contrast to the rule of the men and women who serve as judges. If the judge is simply a vehicle for expressing the law's meaning, then when the judge interprets the law, the judge is not adding his or her own gloss, but rather simply applying the rules and standards previously chosen through democratic processes. For this reason, Justice Scalia, who has also espoused formalism, specifically associates it with the rule of law.

Yet formalism has been under assault for over a century. "Legal realists" have long noted that the formalist's view of the law is false, or at least radically incomplete. Even a legal realist will likely admit that, yes, in some very simple cases--the sort that are either never brought or that settle quickly--the formal legal materials uniquely determine the answer. However, legal realists point out that in the sorts of cases that reach appellate courts, and especially a court of last resort like the United States Supreme Court, there is usually a substantial gap or ambiguity in the law. That is the very reason why we need such courts, legal realists say.

As the term "legal realism" suggests, legal realists believe that formalists are not being honest (perhaps, not even with themselves) when they disclaim any influence from their own values upon their judicial decisionmaking. Nor, they say, could matters be otherwise in a complex and evolving society in which legislators and constitution writers cannot possibly have anticipated all of the circumstances in which the provisions they wrote would be applied. The point was aptly made this way:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

Who said that? None other than Judge Sonia Sotomayor, in a 1996 speech at Suffolk University Law School.

Formalism, Legal Realism, and Judicial Empathy

Knowing that Judge Sotomayor is a legal realist does not tell us everything about her judicial philosophy, but it does paint a vivid contrast with the formalism expressed by Justice Thomas and Chief Justice Roberts at their confirmation hearings. That contrast, in turn, makes sense of the controversy over President Obama's view that a Justice ought to have empathy.

If one thinks--as many conservative commentators apparently do--that formalism correctly describes American law, then empathy is irrelevant to judging. The judge's job is simply to apply the formal legal materials. Empathy is no more useful to the formalist judge than it is to someone writing a dictionary. In each case, one is simply looking for the meaning of words.

However, if one thinks that the legal realists have it right, then a broad capacity for empathy is crucial to judging. According to the legal realist view, in filling in the law's gaps and ambiguities, a judge will necessarily be making value-laden decisions that derive in part from her background and experience. The broader the background, and the greater her ability to step outside her own circumstances to see the law's effects on others, the greater will be the judge's ability to, as Judge Sotomayor put it, adapt the law "to the realities of ever-changing social, industrial and political conditions."

Neither legal realism nor empathy alone constitutes the whole of Judge Sotomayor's judicial philosophy. To fully appreciate her approach, it would be necessary to read a substantial number of the hundreds of opinions she has authored as a federal judge. But at least with a professed legal realist judge like Sotomayor, one knows where to begin. In an era when we are all too familiar with 5-4 Supreme Court decisions splitting along conservative/liberal lines, it is refreshing to have a nominee who does not pretend that her background and values have nothing to do with her legal decisions.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.