No Majesty in a Constitutionally Deficient Supreme Court Nominee
When analyzing any nomination to the Court, one may quickly leap to the determination that they are either considered to be a model of judicial restraint or a model of judicial activism. In his recent Forbes.com column, Professor Richard Epstein cuts to the chase and proclaims that unhappy conservatives and libertarians “won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction.” Further, he calls for a more intricate, “fine-grained inquiry” to investigate and to extrapolate why nominees of her progressive ilk make errors and why these errors are a more legitimate way of analyzing the nominee's judicial aptitude. In this article, Prof. Epstein references two constitutional guideposts in illuminating error: the first being a situation where the judge should have stayed out of the “conversation” (Roe v. Wade), and the second being a situation where there should have been intervention (Kelo v. City of New London, or Sotomayor’s own Didden v. Village of Port Chester).
Under this constitutional error inquiry, a fair analysis of Judge Sotomayor’s decisions should ensue in order to not just frame her as either activist or strict constructionist, but to identify discrete ways in which she has erred and how these errors resonate in constitutional law. To start, Judge Sotomayor had twice been a participant in the adjudication of Bartlett v. New York State Board of Law Examiners. The first was as district judge and the second was upon special designation, which occurred after the case had numerous years of litigation. The basic facts were this: the plaintiff had tried three times to take the bar, and three times he had failed. She cited a learning disability that made him read at a far slower rate than his colleagues, and she brought various constitutional and civil rights claims (equal protection, due process, § 1983) as well as claims arising under the Americans with Disabilities Act (ADA). Eventually, Bartlett was given double the amount of time on a time-sensitive test (four days compared with two) in order to complete and for his skills to be “adequately” assessed.
Whether or not they passed the bar (she has not) is a moot point. In Bartlett, there is a clear-cut example of a judge using a set of facts under the guise of empathetic pragmatism in order to forward constitutional rights that are simply nonexistent or grossly mislead. Usurping a cornerstone of an examination in the name of “reasonable accommodation” is, at best, faulty reasoning. What is so reasonable about taking a very key asset of an examination- the strict time restrictions set in place to test both the reading comprehension and the analysis of the taker- and inherently removing it for one person, to give them an advantage over the other takers? Is it not the point of the examination to show who is best apt to serve the bar and the people who utilize that profession? One can see this same defective legal reasoning within Ricci v. DeStefano, whose facts and controversies are by now widely known. These two cases show distinct constitutional error, manifesting in intervention that occurred for the sake of leveling a playing field that was justly in place, in the name of anti-discrimination, due process, equal protection, etc. By leveling the playing field, Judge Sotomayor in-fact lowered the constitutional protections of everyone else who took the bar or who took the firefighter's exam, and needless to say, the harm to society is greater than the harm to the individual.
Secondly, the aforementioned case of Didden v. Village of Port Chester is a clear-cut case of where the judiciary could have stepped in to prevent the other branches of the government from exerting too unwieldy of a force over an individual and their private property rights. In this case, the panel, including Sotomayor, generally excused what amounted to extortion and what would be considered duress, undue influence, or fraud, anywhere else. Not only did Didden not accept the $800,000 for the land (or agree to give a hefty fifty-percent share), his land was condemned almost immediately. The court ruled that although the statute of limitations had barred any claim, this was not a taking regardless, and thus there is no need to encounter question of just compensation. Without getting into a larger debate regarding property rights and the 5th Amendment’s Takings Clause since Kelo, it is quite evident to the ordinary human being- the ordinary worker, may he be white or with the richness of heritage that Judge Sotomayor so favors- that private property rights were severely disfigured by a panel of judges who felt that a pretextual (i.e. a fraudulent misrepresentation of public purpose) taking is a legitimate, constitutional practice. Simply put, the panel “empathized” with greed, corruption, and fraud over the inalienable rights of hard-working Americans.
Dare I say it, but the tattered flag of activism still flies because of decisions like Didden, Bartlett, and Ricci. While Professor Epstein may favor a fine-grained inquiry over a loose designation of activist or constructionist, I still believe there is relevancy to those designations which place the behaviors of judges in the context of a larger socio-political setting.
However, regardless of personal preference, I believe that we all can agree that allowing a judge onto the Court who takes even the radical Kelo decision to new heights is one that is simply unacceptable. Or, phrased differently, the legal majesty that Sonia Sotomayor eyed in her law review article, and the majesty that the Court has long held in the public eye, will slowly dissolve the democratic protections that we find self-evident. The protections of the people, through the legislature and through the executive, to create and enforce laws on their terms will be eroded to the point that even distinct constitutional error will be considered moot, for there may no longer be a true constitution to err against. I would much rather wave a tattered flag of activism or construction than sit idly, waiting for the eventual demise of the government by the people, for the people.
Bartlett v. New York State Board of Law Exam’rs, 970 F. Supp. 1094 (S.D.N.Y. 1997)
Bartlett v. New York State Board of Law Exam’rs, 2001 U.S. Dist. LEXIS 11926 (S.D.N.Y. 2001)
Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008), rehearing denied 530 F.3d 88 (2nd Cir. 2008), cert. granted 129 S. Ct. 893 (2009).
Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2nd Cir. 2006), cert. denied 127 S. Ct. 1127 (2007).
Sotomayor's Law Review Article:
Hon. Sonia Sotomayor, Returning Majesty to the Law and Politics: A Modern Approach 30 Suffolk U. L. Rev. 35 (1996).