Justice Sotomayor at CWRU

Associate Justice Sonia Sotomayor came to Case Western Reserve University today for a Q&A session with students at the School of Law.  The private event was well attended by 400-plus students, and Justice Sotomayor spent over an hour fielding their questions on a wide variety of legal subjects.  I was fortunate enough to attend, though us professorial types were confined to the back.  I took copious notes — no computers were allowed so no live blogging — and I’ve written them up below the jump.

My overall impression was quite positive.  Justice Sotomayor was relaxed and poised; confident, and yet approachable.  She had no prepared remarks.  She fielded questions from students — and only students — for over an hour, casually leaning on the side of the podium.  She readily engaged and seemed to enjoy the conversation. At the close of the event, she was asked to pose for a photo with the assembled mass of students.  She obliged, but then insisted on walking through the auditorium for pictures with smaller groups, taking up more of her time and, without doubt, giving her security detail fits.  (I didn’t have the heart to tell them of the stray putty knife we found by our seats when we arrived, well after the security sweep.)

In her brief, impromptu introductory remarks, she made reference to Brown v. Board of Education, which was decided only a month before she was born.  Brown affected the lives of at least 80 percent of those in the room, she suggested, and not just because it began the process of opening doors for minorities and women.  The decision in Brown “transformed” American society, she said, but it wasn’t the Court that did it, rather “the Constitution did it.”

The first question was whether the takings clause imposed any real limit on the ability of state and local governments to impose environmental restrictions on land-use, such as limitations on mowing private land (a restriction apparently placed on the questioner’s family).  The question, which asked for the Justice’s view on a discreet legal issue, was initially met with a large sigh.  “I don’t know the answer to that,” Justice Sotomayor said.  This area of the law “is really confused.”  She noted that the doctrine of regulatory takings (as oppose to physical takings) was of  “more modern vintage” and was not entirely clear.  In this area, as in others, she said she approaches each question on a “case by case” basis, and she doubted whether takings cases are likely to yield a “bright line” rule “in either direction.”

Asked about whether there is sufficient access to the Supreme Court, given the low percentage of cert petitions accepted, Justice Sotomayor acknowledged the drop in cert grants, but demurred on attributing a specific cause.  In her first year she say first hand that “vehicle problems” — that is, the problems that arise when a case does not cleanly present the relevant legal questions — are quite real and a valid reason to deny cert.  She also thinks there is no easy way to expand the Court’s docket, and that legislative efforts could be “very dangerous.”

As a new justice Sotomayor said she has spent a significant amount of time encouraging the Court to grant cases raising issues that affect the day-to-day business of lower courts, trial courts especially.  This was an interesting comment, as many suspected that her experience as a trial court judge — experience no other current justice shares — could influence her approach to cases, even if it did not affect outcomes.

A student tried to get the justice to show her hand on the health care mandate, asking whether there could ever be a situation in which it would be constitutional for the federal government to mandate that all Americans purchase a particular product.  Nice try.  Justice Sotomayor did not rise to the bait, but she did not completely avoid the question either.  Noting again that she makes decisions  on a case-by-case basis, she would not rule out that the government might have such power.  Legislatures at all levels of government, including Congress, have “police powers” to protect the public, she said.  So imagine a hypothetical in which there is a poisonous gas that produces a contagious malady — a gas that if it infects one person, could then infect even those with gas masks or other protective gear.  In such a situation, could the federal government, if it lacked the fiscal wherewithal to purchase enough gas masks for distribution, mandate the purchase of gas masks by all Americans?  After laying out this hypothetical,  Justice Sotomayor suggested it well could, but immediately added that this sort of extreme case could be the limit.  Constitutional law does not deal in absolutes, she said.  If the First Amendment does not prohibit all legislative limitations on speech or religion, there’s no reason to believe there would be an absolute prohibition here.

Asked about how and how often she interacts with the other justices, Sotomayor said she has far more interaction with her colleagues now than she ever did as a trial judge or on the Second Circuit.  The justice meet “all the time,” she said, gathering at least once a week to discuss cert petitions.  She also discussed the justices’ conference procedure, explaining the Chief Justice Roberts largely follows the approach of his predecessor, William Rehnquist, albeit not as rigidly.  Based on her understanding of how things operated before, Roberts allows more room for discussion.

A student asked Justice Sotomayor whether she could explain the reasons why she joined the dissent in McDonald v. Chicago and whether she thought Justice Thomas’ concurring opinion relying upon the Privileges or Immunities Clause had any merit. “No,” she replied.   She went on to explain.  “Every opinion I write and every opinion I join” fully explains her reasons for deciding a case in a particular way.  She also suggested some justices are too quick to write their own separate dissenting or concurring opinions.

Asked to comment on the line between interpreting the constitution and “legislating from the bench,” she said “there is no magic line.”  It can be “difficult to distinguish” between the two.  “I don’t understand how courts legislate from the bench.”  In her view, judges typically make heir best effort to apply general language to specific problems in a given context.  “Legislating from the bench” is a politically charged characterization, not a legal description of judicial conduct.

Asked about whether it is necessary or important for the Court to increase transparency so as to ensure its legitimacy, she turned to the question of cameras in the Court.  She’s still listening to her colleagues views on the subject, she said, but her recent experiences have definitely influenced her views about the effect cameras can have upon how people behave, and is sensitive to concerns that cameras would alter the conversation and the courtroom dynamic.  People are less candid when the cameras are rolling because comments can be taken out of context, and she alluded to the recent travails of Shirley Sherrod.  A justice’s questions do not necessarily indicate how he or she feels about a case, and yet soundbites from oral argument could be broadcast on the evening news.  Justices, Sotomayor noted, are unlike other poltiical figures in that they “tell you, completely” why they do what they do in their opinions, rendering other transparency measures, like cameras, less necessary.

As to how justices draft their opinions, she said all do it differently.  some draft opinions themselves, while others rely more on their clerks.  Justice Sotomayor said that she talks about a case with her clerks and provides them with an oral outline of the opinion she’d like to see.  A clerk will draft the opinion, and then she will edit and revise it, completely reworking the draft if necessary.  She then asks her other clerks, those who did not work on the opinion, to challenge it so she can make it as strong as possible.

She explained how opinion drafts circulate on the Court and how dissenting justices will either caucus to determine who will write a dissenting opinion, or each take their own shot.  The back and forth of opinions and drafts can change opinions, she said, commenting that “more than once this term” a majority opinion had to be substantiallty rewritten in response to a dissent, and at least once in her first term, the justices were divided at conference but ruled unanimously in the end as minds were changed.  (Any guess as to what case this might be?)

Asked about the reliance upon foreign law in judicial opinions, Justice Sotomayor said that barring any citation of foreign legal authorities, as some had proposed, would be a “ridiculous idea.”  Judges only look to foreign law “for a purpose,” and some cases require consideration of foreign law because of the nature of the issue at hand.  The real controversy, she noted, is whether it is ever appropriate to consider foreign law when interpreting the U.S. Constitution.  In this area, she said, she agrees completely with the views expressed by Justice Kennedy this past term in Graham v. Florida.  Justice Kennedy did a “masterful job” at distinguishing between looking to foreign judgments for proof of constitutional meaning and looking to such judgments for confirmation that the application of certain principles should or have evolved in a particular way.

In response to a final question about her own experience challenging authorities or speaking truth to power, Justice Sotomayor offered sound advice.  “You always have to stand up for what you think is right,” she said, adding, “the question is how you do it.”  One need not be unduly confrontational to stand up for one’s beliefs — indeed, such efforts can be counterproductive.

[Note: Edited for typos.]