So­tomayor’s smack­down

The Washington Times Weekly - - Editorials -

It’s no se­cret that the U.S. Supreme Court of­ten shows a deep philo­soph­i­cal di­vide, 5-to-4, on cases of the great­est mag­ni­tude. It thus should raise eye­brows to know that the high court’s jus­tices once voted unan­i­mously to slap down an opin­ion writ­ten by the very judge, So­nia So­tomayor, who has been nom­i­nated to join their ranks.

In the 2006 case of Mer­rill Lynch v. Dabit, all eight vot­ing jus­tices ruled that Judge So­tomayor had ig­nored or mis­con­strued a whole line of cases, stretch­ing all the way back to 1971. (The ninth seat was un­filled, await­ing the con­fir­ma­tion of Jus­tice Sa­muel A. Al­ito Jr.) Judge So­tomayor erred in fa­vor of what should be de­scribed as Jack­pot Jus­tice Inc., oth­er­wise known as the group of plain­tiffs’ at­tor­neys most prone to law­suit abuse.

It wasn’t one of the con­ser­va­tives who wrote the de­ci­sion over­turn­ing the ill­con­sid­ered opin­ion that Judge So­tomayor had writ­ten for the 2nd Cir­cuit Court of Ap­peals; the au­thor was a fel­low lib­eral: Jus­tice John Paul Stevens. Lib­eral Jus­tices Ruth Bader Gins­burg, Stephen G. Breyer and David H. Souter all joined the more con­ser­va­tive An­tonin Scalia, Clarence Thomas, John G. Roberts Jr. and An­thony M. Kennedy in what can only be de­scribed as a ju­di­cial ver­sion of a smack­down.

The case in­volved a rather dry anal­y­sis of se­cu­ri­ties laws rather than is­sues most of the pub­lic would rec­og­nize as cru­cially im­por­tant. It’s also true that fair ex­am­i­na­tions of Judge So­tomayor’s whole record would show sev­eral cases in which she sided against the plain­tiffs’ bar so of­ten fa­vored by lib­er­als. Nev­er­the­less, her read­ing of this par­tic­u­lar case was ten­den­tious enough to sug­gest she was try­ing to make pol­icy in fa­vor of plain­tiffs rather than du­ti­fully fol­low prece­dent.

We need not get lost in the de­tails of the case, which cen­tered on an at­tempt to file a class-action suit in friendly state courts rather than fed­eral court. Congress had acted wisely to pre-empt such mis­use of state courts on cases in­volv­ing the stock mar­ket be­cause, as the Supreme Court noted, “the mag­ni­tude of the fed­eral in­ter­est in pro­tect­ing the in­tegrity and ef­fi­cient op­er­a­tion of the mar­ket for na­tion­ally traded se­cu­ri­ties can­not be over­stated.” The high court noted that Congress had clear au­thor­ity to try to “de­ter or at least quickly dis­pose of those suits whose nui­sance value out­weighs their mer­its.”

The court also wrote that on in­ter­pret- ing the key clauses of the law, any am­bi­gu­ity had long been re­solved. Fur­ther, the proper in­ter­pre­ta­tion flows di­rectly not from com­pli­cated le­gal pre­cepts but from “or­di­nary prin­ci­ples of statu­tory construction.”

In short, this was not a par­tic­u­larly dif­fi­cult case. Judge So­tomayor was way out in left field on this one. Her de­ci­sion was an ex­am­ple of ju­di­cial ac­tivism of the sort that led her to write in a 1996 Suf­folk Uni­ver­sity Law Re­view ar­ti­cle that only judges and ju­ries, not leg­is­la­tors, have the right to place “lim­its on jury ver­dicts in per­sonal in­jury cases.” The as­ser­tion is lu­di­crous.

Given her his­tory of ac­tivism, the Se­nate should ques­tion whether Judge So­tomayor can ap­ply ex­ist­ing law faith­fully and well. The Supreme Court al­ready has ruled against her.

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