Today the Brennan Center for Justice at NYU’s School of Law released a report by Monica Youn, Judge Sotomayor’s Record in Constitutional Cases. The study looked at over 1,000 constitutional cases heard by the U.S. Court of Appeals for the Second Circuit during the time Judge Sotomayor was on the court. Here is how the Brennan Center summarizes the findings in the report’s Executive Summary:
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.
What the executive summary does not mention, but the accompanying graphs show (see here, page 13), is that Judge Sotomayor votes to overturn governmental action on constitutional grounds more often than the average judge on the Second Circuit, a point also noted in this NYT story. The report claims this difference was not statistically significant.