Judge Sotomayor’s Record of Forging Consensus, Predicting High Court Outcomes

Upon review of Judge Sotomayor’s so-called reversal rate, it appears she’s doing better than her peers on average. According to the New York Law Journal, which runs a monthly column called “2d Circuit Roundup,” since 2002 the High Court has taken up 35 cases from the Second Circuit; of those, it has reversed, vacated or remanded for future consideration 26, or about 74%. For cases where Sotomayor was the principal drafter of the opinion, the record is 60% reversed, 40% affirmed. According to SCOTUSblog, in 2008, for example, the Court reversed 75.3 percent of the cases it considered. So she’s doing better than her court and better the rest of the federal judiciary.

(Pity poor Justice Alito, whose 3rd Circuit decisions had a reversal rate of 100% when GWB nominated him in ’05.)

Also let’s bear in mind that cert is granted only rarely and not as of right (unlike, for example, the court where Judge Sotomayor sits, where the judges must hear every case that one litigant decides to appeal). Thus there is likely to be a higher proportion of reversals of the cases they do hear; otherwise, they wouldn’t have been able to garner the 4 votes necessary to grant the cert petition in the first place.

In all but one of the decisions for which she wrote the opinion later reviewed by SCOTUS, she wrote for a unanimous panel (one was 2-1). That places her in the mainstream at least among her fellow 2d Cir judges. Being a consensus builder will certainly be a helpful trait when she gets to the High Court.

Similarly the decision in the New Haven firefighters case — and the decision to submit a short, unsigned opinion — was unanimous among the three judges on that panel, as tempting or convenient as it may be to attribute the decision to her (the LA Times referred to it as “one of her key appellate court rulings”), or to speculate that she was the prevailing force behind the opinion or the decision to submit it unsigned. (The move to reconsider it failed before the Second Circuit, 7-6).

In 11 years on the Second Circuit, only one opinion authored by Judge Sotomayor went up to SCOTUS where she did not write for a unanimous panel. The High Court’s decision was 5-4 to UPHOLD. Clearly she’s able to make tough calls, form a consensus, and stick to her guns.

None of this will stop the hazing for fun and profit until the hearings in July, of course. And if you subscribe to Mark’s theory, it’s just as well.

Author: Lesley Rosenthal

LESLEY ROSENTHAL teaches, writes, and talks incessantly about the law. She has developed a curriculum called Advocating for the Rule of Law: A Practical Approach, and she has designed and conducted workshops for artists, lawyers, writers, and others seeking to learn more about how to activate democracy. She is the Chief Operating Officer & Corporate Secretary of The Juilliard School and the author of Good Counsel: Meeting the Legal Needs of Nonprofits (Wiley 2012). Ms. Rosenthal holds a JD from Harvard Law School and a bachelor’s in philosophy, magna cum laude, from Harvard College. She is president of the New York Bar Foundation and a member of the Council on Foreign Relations. Follow her on Twitter or Facebook @GoodCounselBook and @LetUSROL