Skip Navigation

Judge Sotomayor’s Record in Constitutional Cases

  • Monica Youn
  • Burt Neuborne
Published: July 9, 2009

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.




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.