The confirmation hearings of future Justice Sotomayor are over, and it's pretty clear what the outcome will be. Media coverage of the hearings dropped off drastically last Friday, and health care dominated the morning shows yesterday. D.C. is way over it, and you are too.
if when she's confirmed, Sonia Sotomayor will have a not-insignificant amount of power over some of the most intimate and hotly contested areas of our lives. Did we learn anything from the confirmation hearings about what sort of Supreme Court Justice she'll be?
Not really. Backed into blandness from the start due to President Obama's "empathy" rhetoric on the one hand and fiery Latina stereotypes on the other, Sotomayor was unruffled, even boring, throughout. So much for a hot bench. The conventional wisdom is that presidents are terrified of a recap of Robert Bork and are now choosing hyperqualified types (Harriet Miers aside) who are willing to stay utterly mum about judicial philosophy. But I refuse to believe that confirmation hearings will always be this way. Some day, a nominee will try to say something sincere about what judges do or should do, and the nomination process will get interesting again.
The only real clue Sotomayor offered as to what sort of justice she will be, once released from the good ship binding precedent and thrown upon the kinder shoals of stare decisis, came when she named her favorite justice:
If you would ask me instead, if you permit me, to tell you a justice from the past that I admire for applying that approach to the law, it would be Justice Cardozo. Now, Justice Cardozo didn't spend a whole lot of time on the Supreme Court; he had an untimely passing. But he had been a judge on the New York Court of Appeals for a very long time, and during his short tenure on the bench one of the factors that he was so well known for was his great respect for precedent and his great respect for—respect and deference to the legislative branch and to the other branches of government and their powers under the Constitution.
In those regards, I do admire those parts of Justice Cardozo which he was most famous for, and think that that is how I approach the law: as a case-by-case application of law to facts.
Now, lots of people like Cardozo, so I shouldn't read too much into this. But I don't think Cardozo is most famous for executing a case-by-case application of law to facts. He is famous for Macpherson v. Buick Motor Company, which helped abolish the requirement of strict privity (think of a buyer-seller relationship) in products liability suits. Cardozo's decision is why you can sue Toyota or GM when your car blows up instead of bleeding the poor neighborhood dealership for all it's worth. Cardozo is also famous for Palsgraf v. Long Island Rail Road Co., which had an even more sweeping influence in tort law. Both cases show how judges make law. They make law in a way that's different—less powerful in some ways, more powerful in others—from legislators' lawmaking. But it's lawmaking nonetheless. Oh, I'll let Cardozo explain:
My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art. Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. "Il ne peut intervenir," says Charmont, "que pour suppléer les sources formelles, mais il n'a pas, dans cette mesure même, toute latitude pour créer des régles de droit. Il ne peut ni faire échec aux principes généraux de notre organisation jun dique, explicitement on implicitement consacrés, ni formuler une réglementation de detail pour l'exercise de certains droits, en établissant des délais, des formalités, des règles de publicité." ["He may intervene only to supplement the formal authorities, and even in that field there are limits to his discretion in establishing rules of law. He may neither restrict the scope of the general principles of our juridical organization, explicitly or implicitly sanctioned, nor may he lay down detailed regulations governing the exercise of given rights, by introducing delays, formalities, or rules of publicity."] None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.
If you want to think more about Sotomayor's future role on the court, I recommend the following:
1) Justice Ginsburg's recent interview with the New York Times. (My favorite bits: "Yes, the notion that Sonia is an aggressive questioner — what else is new? Has anybody watched Scalia or Breyer up on the bench?" and "The morning-after pill will become more accessible and easier to take. So I think the side that wants to take the choice away from women and give it to the state, they’re fighting a losing battle. Time is on the side of change.")
2) Jeffrey Toobin's excellent profile of Justice Roberts in The New Yorker. (The thesis: "Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.")
3) A fairly conservative pragmatist on the 7th Circuit, Judge Richard Posner, has a lovely baseball analogy-demolishing book entitled How Judges Think. Some of the juicy stuff is available on Google Books, too.
4) At the University of Chicago, one of the first things they make us read is the famous line of cases ending in Cardozo's Macpherson decision. But you can do it on your own. Watch the law change in front of your very eyes (and enjoy some mislabeled belladonna and exploding boilers along the way): Winterbottom v. Wright, Longmeid v. Holliday, Thomas v. Winchester, Loop v. Litchfield, Losee v. Clute, Statler v. Ray Mfg. Co., Macpherson. It's our common law heritage—be proud!