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Sotomayor Not an Activist Judge, Study Finds

A new comparative study of 1,194 constitutional cases shows that Judge Sonia Sotomayor is neither an “activist” judge nor an “outlier” jurist among her peers on the Second Circuit.

July 8, 2009
For Immediate Release
Contact: Jeanine Plant-Chirlin, 212–998–6289
               Susan Lehman, 212–998–6318 
New comprehensive data shows that Judge Sotomayoris neither an activist nor outlier judge  

New York – A new comparative study of 1,194 constitutional cases shows that Judge Sonia Sotomayor is neither an “activist” judge nor an “outlier” jurist among her peers on the Second Circuit. In the run-up to next week’s Senate Judiciary Committee confirmation hearings, the unprecedented depth of this analysis provides hard data to counter the rhetoric of “judicial activism” that has plagued her nomination since May.

The Brennan Center for Justice at NYU School of Law looked at each of the constitutional cases decided by the Second Circuit during Sotomayor’s decade-long service, analyzed her decisions and compared them to those of her peers.

Measuring judicial activism and deference, the report considers whether a judge’s vote was in accordance with his or her colleagues; whether it upheld or overturned a governmental action; and whether it affirmed or reversed the lower court.

“In this confirmation process, we hear a lot about ‘judicial activism.'  But we hear too much rhetoric.  We decided to look at the facts,” says Monica Youn, primary author of the report and attorney in the Brennan Center’s Democracy Program. “When we compared Judge Sotomayor’s record against those of her peers, we found that Judge Sotomayor is squarely within the mainstream of the Second Circuit.”

The report also examines whether Judge Sotomayor’s decision making and that of her colleagues varied in specific cases – involving, for example, civil rights or criminal law – and also whether it mattered if a judge had been appointed by a Republican or Democratic President.

Among the findings:

  • 94% of Judge Sotomayor’s constitutional decisions have been unanimous.

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

  • Even when she voted to hold a governmental action unconstitutional, the Republican-appointed judges on the Second Circuit voted with Judge Sotomayor in nearly 90% of cases.

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

  • In the cases in which she voted to overrule a district court or agency, a Republican-appointed judge voted with her over 94% of the time.

“When the predictable rhetoric about ‘activism’ began, the Center decided to weigh in on her nomination and this report offers a unique contribution to the debate,” says Susan Liss, director of the Democracy Program at the Brennan Center.  "We were struck by the degree of unanimity and consensus on a court with nearly equal numbers of Republican and Democratic appointees, and Judge Sotomayor has agreed with her colleagues more than most."

“Reflections on Judge Sotomayor’s nomination to the Supreme Court carry particular emotional resonance for the Brennan Center because it is Justice Brennan’s seat that is to be filled,” says Burt Neuborne, Inez Milholland Professor of Civil Liberties at NYU School of Law and contributor to the report. “This report will help ground and shape the discussion surrounding the Senate Confirmation hearings.”

For more information or to set up an interview with Monica Youn, Burt Neuborne, or Susan Liss, please contact Jeanine Plant-Chirlin at 212–998–6289 or or Susan Lehman at 212–998–6318 or