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13 July 2009 11:45 AM
The Other Sotomayor
Jeffrey Rosen writes that many observers are looking in the wrong place if they want to understand her ideas about the law:
...reviews of Sotomayor's appellate opinions have found them dry and technocratic. "[T]hey reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor's decisions are, instead, almost always technical, incremental, and exhaustive," wrote Adam Liptak in The New York Times. After an initial reading of her majority opinions, I came to a similar conclusion.
But Sotomayor's dissenting opinion in the Gori case doesn't fit this characterization at all. It is filled with blistering language. She called the majority's holding "unprecedented" and "extraordinary." Ridiculing the majority's characterization of the officers' behavior as a polite request to step outside for the purpose of a "limited investigation," she chastised her colleagues for failing to recognize the "obvious element of coercion" that reasonable people would feel in being confronted in their homes by officers pointing guns at them through an open door. And Sotomayor was persuasive on the substance as well. In 2004, in an opinion written by Judge Richard Posner and joined by one of Obama's Supreme Court runners-up, Diane Wood, the U.S. Court of Appeals for the Seventh Circuit agreed with Sotomayor's dissenting position that allowing the cops to seize anything they see through a door that opens in response to their knock would undermine the constitutional protections for the home.
If Sotomayor's majority opinions are often hard to distinguish from those of her fellow appellate judges, perhaps that's not surprising in a genre so heavily constrained by legal precedents. It's often in dissents that appellate judges can express their true selves--their passions, judicial philosophies, and unique views of the law. And Sotomayor's little-noticed dissents are clearly the opinions in which she has the greatest personal investment. Unlike her majority opinions, her dissents sometimes show flashes of civil-libertarian passion or indignation, even as they remain closely grounded in facts and precedents. Most important, they are substantively bold, staking out unequivocal liberal positions--from a broad reading of the Americans with Disabilities Act to sympathy for the due-process rights of a mentally ill defendant.
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