Judge Sotomayor's Record in Constitutional Cases

July 9, 2009

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Executive Summary
Methodology
Findings
Additional Appendices to the Report
Statistical Significance of Findings
About the Author
 

 


Executive Summary

The Supreme Court seat to which Judge Sonia Sotomayor has been nominated was held for thirty-four years by an extraordinary jurist and exceptional human being, Justice William J. Brennan, Jr., namesake and inspiration for the Brennan Center for Justice. A singular institution - part think-tank, part public interest law 

firm, part advocacy group - the non-partisan Brennan Center until now has not participated in the public debate surrounding any Supreme Court nominations since our founding in 1995. Nevertheless, shortly after Judge Sotomayor was nominated, and the predictable rhetoric about "activism" began, the Brennan Center leadership decided that the Center could make a unique contribution to the debate surrounding this nomination.

We take no position on Judge Sotomayor's confirmation. Rather, we have undertaken an unprecedented analysis to provide context and perspective on the continuing debate over "judicial activism." A team of Brennan Center attorneys and legal interns looked at every constitutional case decided by the Second Circuit during the decade of Judge Sotomayor's service - a total of 1194 in all. Using measures for testing judicial activism and deference developed by academics in recent years, the Center analyzed Judge Sotomayor's decisionmaking and compared her record to that of her colleagues on the Second Circuit. We looked at various measures of the relative deference or "activism" of a judge's action in a particular case:

(1) Whether the judge's vote was in accord with his or her colleagues on the bench;

(2) How often the judge upheld the action of another branch of government, such as a statute or other governmental action;

(3) How often the judge deferred to the lower court or agency decision under review.

We also looked at whether Judge Sotomayor's decisionmaking and that of her colleagues varied according to the substantive area at issue in a particular case, specifically cases involving civil rights, criminal law, due process, or the First Amendment. In addition, we examined three other factors: whether it made a difference if the judge had been appointed by a Democrat or Republican president, or if the judge had been a former lower or state judge, or if the judge had prior experience as a prosecutor.

Based on this exhaustive review, the conclusion is unmistakable: in constitutional cases, Judge Sotomayor is solidly in the mainstream of the Second Circuit. After we analyzed every constitutional case in the Second Circuit over the past decade, what was striking was the degree of unanimity and consensus on a court roughly evenly split between Democratic appointees and Republican appointees.

  • Even given the often-noted collegiality of the Second Circuit, Judge Sotomayor has been in agreement with her colleagues more often than most - 94% of her constitutional decisions have been unanimous.

  • She has voted with the majority in 98.2% of constitutional cases.

  • When she has voted to hold a challenged governmental action unconstitutional, her decisions have been unanimous over 90% of the time.

  • Republican appointees have agreed with her decision to hold a challenged governmental action unconstitutional in nearly 90% of cases.

  • When she has voted to overrule a lower court or agency, her decisions have been unanimous over 93% of the time.

  • Republican appointees have agreed with her decision to overrule a lower court decision in over 94% of cases.

  • She overruled lower court and agency decisions at a rate that closely conforms to the circuit overall average.

Our analysis shows that - far from casting her as an "outlier" - Judge Sotomayor's record is remarkably consistent with that of her colleagues. The analysis also refutes charges made since the day of her nomination that Judge Sotomayor is a "judicial activist." Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist.


Methodology

Our analysis includes both a measure of the overall frequency with which a particular judge voted to uphold the governmental action at issue as well as a breakdown of whether the governmental action at issue was federal, state, or local. Our analysis also breaks down whether the governmental action at issue in the case was the operation of a statute or an action by an agency or other non-legislative actor.


Findings

 

Constitutional dataset overturning governmental action

 

 

 

 

 

 

 

 

 

 


Additional Appendices to the Report


Statistical Significance of Findings

In addition to computing the raw percentages of the time that Judge Sonia Sotomayor voted in a certain manner and the corresponding figure for the Second Circuit Court of Appeals as a whole, we utilized a series of statistical tests to answer the following questions: 

  • In the Constitutional Dataset, did the percentage of the time Judge Sotomayor voted to (1) overturn governmental action or (2) overrule the lower court or agency differ significantly from her colleagues?
  • In Civil Rights cases, did the percentage of the time Judge Sotomayor voted to (1) overturn governmental action or (2) overrule the lower court or agency differ significantly from her colleagues?
  • In Criminal Law cases, did the percentage of the time Judge Sotomayor voted to (1) overturn governmental action or (2) overrule the lower court or agency differ significantly from her colleagues?
  • In Due Process cases, did the percentage of the time Judge Sotomayor voted to (1) overturn governmental action or (2) overrule the lower court or agency differ significantly from her colleagues?
  • In First Amendment cases, did the percentage of the time Judge Sotomayor voted to (1) overturn governmental action or (2) overrule the lower court or agency differ significantly from her colleagues?

To answer these questions, we first calculated the total percentage of decisions in which Second Circuit justices, with the exception of Judge Sotomayor, voted to overturn governmental action or overrule the lower court or agency decision.  We calculated the mean of this sample and compared it to the percentage of Judge Sotomayor's decisions in which she voted to overturn governmental action or overrule the lower court or agency. 

Because Judge Sotomayor heard a sufficiently large number of cases, we employed a normal approximation to the binomial distribution in order to conduct a simple Z-test for two proportions.  Additionally, we make the conservative assumption that each case was randomly assigned to judges on the Second Circuit.  We utilized a 95% confidence level and a two-tailed test to ascertain whether Judge Sotomayor's voting behavior differed significantly from her colleagues. 

Our tests revealed that Judge Sotomayor's voting behavior did not differ to a statistically significant extent from her colleagues in the Constitutional Dataset or in any subset of Constitutional Law cases that were investigated.  In other words, the difference between her decisions and the decisions of the average judge on the Second Circuit was no greater than one would expect simply from the fact that judges were randomly assigned cases. Therefore, we concluded that Judge Sotomayor's voting behavior was not significantly different from her colleagues on the Second Circuit. 


About the Author

Monica Youn works as an attorney in the Democracy Program of the Brennan Center, focusing on campaign finance reform and other means of achieving and protecting broader participation in the political process. She was previously in private practice at the law firms of Manatt Phelps & Phillips LLP and Patterson Belknap Webb & Tyler LLP, focusing on media and intellectual property litigation. She also served as law clerk to Judge John T. Noonan, Jr. in the United States Court of Appeals for the Ninth Circuit. Ms. Youn received her J.D. from Yale Law School, her M. Phil from Oxford University, where she was a Rhodes Scholar, and her B.A. from Princeton University.