Judge Sonia Sotomayor is an obviously serious candidate to serve on the Supreme Court.  We have been struck by how the amount of commentary about Judge Sotomayor has ignored the most accessible and valuable source of information:  her opinions as an appellate judge.  Last year, I directed a project in which a team of Akin Gump summer associates extensively reviewed Judge Sotomayor’s opinions.  Amy Howe subsequently revised and expanded their work, with contributions by me.

Here, we make our first effort at summarizing what we regard as Judge Sotomayor’s principal opinions in civil cases.  Our only goal is to identify and summarize the opinions, not evaluate them.

A summary of additional civil cases, as well as Judge Sotomayor’s leading criminal law opinions will follow.

CIVIL LITIGATION

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.  To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.  In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter).  Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Abortion Rights:  Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions.  An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights.  Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits.  Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves.  Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

First Amendment – Speech:  Sotomayor has considered First Amendment issues relatively infrequently.  In addition to Center for Reproductive Law and Policy (just discussed), one of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials.  On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech.  Sotomayor dissented from the majority’s decision to award summary judgment to the police department.  She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”  In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat.  Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.”  She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

More recently, in Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as appointments as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association.  Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”

First Amendment – Religion:  In addition to her dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), discussed below, in Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam.  Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam. But in Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002), Sotomayor wrote an opinion holding that an inmate’s First Amendment rights were not violated by prison officials’ monitoring of his mail – prompted by the inmate’s receipt of a book with the title “Blood in the Streets: Investment Profits in a World Gone Mad” – because the inmate had previously caused disturbances and the prison needed to forestall security problems.

Civil Rights:  During her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination.  In these cases, she has often – but not always – sided with the plaintiffs.

Sotomayor’s dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination.  Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer.  Sotomayor agreed with the majority’s decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination.  In her view, the transfer was “unprecedented and contrary to the school’s established policies”:  white students having academic difficulties, she noted, received compensatory help, whereas Gant – the “lone black child” in his class – was not given an “equal chance” but was instead demoted to kindergarten just nine days after arriving at the school.

However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees.  Similarly, in Williams v. R.H. Donnelly Co., 368 F.3d 123 (2004), she wrote an opinion holding that an employee alleging racial (as well as gender) discrimination had not proven she was the victim of discrimination when her employer declined to create a position for her when the employer had never created a position for any particular employee.

In two cases, Sotomayor has voted to sustain claims alleging a hostile work environment.  In Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), she wrote for the panel in a case brought by a Hispanic woman alleging, inter alia, claims arising from a hostile work environment, failure to promote, and retaliation.   The Second Circuit affirmed the district court’s dismissal of the failure-to-promote and retaliation claims but reversed the district court’s decision granting summary judgment on the hostile work environment claim.  Citing the allegations of racial slurs by the plaintiff’s supervisor and sexual harassment, as well as the plaintiff’s assertion that she was fired “under the pretext of fighting in the workplace after she was physically beaten and sexually assaulted,” the panel acknowledged that “Cruz might have stated her claim of hostile work environment harassment more artfully,” but emphasized that “the essential elements of the charge do appear in the complaint.”  And, the panel continued, the “physically threatening nature of [the supervisor's] behavior, which repeatedly ended with him backing Cruz into the wall . . . brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment.”  Moreover the opinion noted, “a jury could find that [the supervisor's] racial harassment exacerbated the effect of his sexually threatening behavior and vice versa.”

And in Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), she was part of a panel that considered hostile work environment and retaliation claims by a female police officer who was allegedly denied desirable shifts, threatened with physical violence, and implicated as a “rat” in front of her male co-workers.  The district court had granted the defendants’ motion for judgment as a matter of law.  In rejecting Raniola’s hostile work environment claim, it described the “camaraderie of a precinct house,” which lacks “some of the niceties of expression.”  With Sotomayor writing, the Second Circuit reversed.  In the panel’s view, Raniola had presented enough evidence to take both her hostile work environment and retaliation claims to a jury.  With regard to the hostile work environment, it emphasized that during a two-and-a-half-year period, “Raniola was subjected to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm.”  And it rejected the district court’s “conclusion that "there is no evidence that plaintiff herself felt that the use of barnyard expletives directed to her or others made her work environment offensive.”  Similarly, although all of the disciplinary actions at issue took place after Raniola transferred to another precinct, her former supervisor’s role “in prosecuting her charges, the timing of the prosecution, and the surrounding events all lend support to Raniola’s retaliation claim.”

Sotomayor has rarely written in age discrimination cases.  However, she authored a forceful dissent in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), a case involving a minister who filed suit under the Age Discrimination in Employment Act (ADEA) after he was forced by his church to retire at the age of 70.  The district court dismissed the claim; on appeal, the Second Circuit reversed, holding that the Religious Freedom Restoration Act (RFRA), which – subject to certain exceptions – prohibits the government from substantially burdening the exercise of religion, had effectively amended the ADEA by providing a defense for ADEA violations.  In her dissent, Sotomayor complained that the majority had “violate[d] a cardinal principle of judicial restraint” when it – unnecessarily, in her view – held that the RFRA was constitutional.  Moreover, she deemed the panel’s decision to remand the case to the district court for briefing on the RFRA issue “a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties.”  Instead, she would have affirmed the district court’s dismissal and held that the ADEA does not apply to employment suits against religious institutions by their leaders.

Sotomayor has been perhaps most sympathetic to claims of discrimination arising from a disability.  In Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000), she was the author of an opinion that followed decisions of other circuits applying Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA), holding that the case should be remanded to the district court because the plaintiff satisfied the elements for a prima facie case of discrimination based on disability.  And she has twice dissented from the majority’s decision to deny a discrimination claim.  In EEOC v. J.B. Hunt Transportation, Inc., 321 F.3d 69 (2d Cir. 2003), she would have held that the plaintiff had made out a prima facie case of disability discrimination because the defendants rejected all applicants for long-haul truck driving who took certain medications.  See also Nielson v. Colgate-Palmolive, 199 F.3d 642 (2d Cir. 1999) (citing Goldberg v. Kelly for the proposition that “the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard” and arguing that when “a party exhibits a limited ability to understand a proceeding affecting her rights, the court must undertake even more strenuous efforts to explain the process”)

Sotomayor has twice weighed in on retaliation claims: in Raniola (described above) and in Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004).  In Raniola, Sotomayor wrote an opinion in which the panel agreed with the plaintiff that her suspension, probation, and termination occurred in retaliation for her discrimination complaints:  one week after Raniola filed a complaint, her supervisor told her that he would give her a poor work evaluation, transfer her from her precinct, and charge her in administrative proceedings.  This evidence, along with witness testimony, provided a reasonable basis to find that any legitimate reasons for her termination were pretext for retaliation.  However, Sotomayor wrote an opinion rejecting retaliation claims in Washington, in which the plaintiffs – African-American correction officers – were subjected to administrative disciplinary proceedings after filing discrimination complaints.  The panel agreed that the administrative proceedings had adverse employment consequences on the plaintiffs, but in her view those adverse consequences, standing alone, did not demonstrate retaliation.

In Malesko v. Correctional Services Corp., 229 F.3d 374 (2000), an inmate who served time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation sought to sue the corporation (and its employees) for injuries that he suffered in the halfway house.  In an opinion by Sotomayor, the court of appeals reversed the district court, holding that the inmate could bring a Bivens action against a private corporation acting under color of federal law.  Such a result, she explained, “furthers Bivens‘s overriding purpose:  providing redress for constitutional rights.”  Moreover, in the absence of any allegations that the government played a role in the “various policies or practices [that] led to” the inmate’s injury, the corporation was not shielded from liability under the government contractor defense.  The Supreme Court granted certiorari and reversed by a five-to-four vote.  534 U.S. 61 (2001).  In an opinion by then-Chief Justice Rehnquist, the Court held that Bivens was “concerned solely with deterring the unconstitutional acts of individual officers” and that there was “no reason for us to consider extending Bivens beyond this core premise here.”  Justice Stevens – joined by Justices Souter, Ginsburg, and Breyer – dissented.  In their view, because the violation at issue “was committed by a federal agent – a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government,” the question before the Court was merely “whether the Court should create an exception to the straightforward application of Bivens” and its progeny, “not whether it should extend our cases beyond their "core premise.'”

Perhaps the highest-profile discrimination case in which Sotomayor has participated (though she did not write a signed opinion) is Ricci v. DeStefano, a challenge by a group of white firefighters in New Haven, Connecticut to the city’s decision not to certify an employment test for use in promotions when the use of the test results would have made a disproportionate number of white applicants eligible for promotions than minority applicants.  The city defended its conduct on the ground that it feared that certifying the results of the test would expose it to a discrimination suit by minority applicants.  Sotomayor was part of a three-judge panel that initially affirmed the district court’s judgment in the city’s favor with a summary order that described the district court’s decision as a “thorough, thoughtful, and well-reasoned opinion.”  The order noted that the judges were “not unsympathetic to the plaintiff’s expression of frustration,” but it explained that “it simply does not follow that he has a viable Title VII claim.”  The panel eventually replaced the summary order with a per curiam opinion that was otherwise virtually identical to the order.  530 F.3d 87 (2008).   Sotomayor was one of seven judges of the Second Circuit to vote to deny rehearing en banc; six other judges dissented from the denial.  In January 2009, the Supreme Court granted certiorari, and it heard oral argument in April 2009.  A decision in the case is expected by late June, and it is likely that the Supreme Court will reverse.

Environmental Law:  Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), a challenge to an EPA rule regulating cooling-water intake structures at power plants.  To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.”  Sotomayor wrote and opinion holding that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be "reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” – which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear.  Thus, she explained, “assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish . . . could appropriately choose the cheaper technology on cost-effectiveness grounds.”  On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.

Sotomayor also held that the EPA could not consider restoration measures – such as restocking fish to compensate for fish killed by an intake system – when determining the best technology available for a particular power plant.  Sotomayor wrote that “[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle.”  Finally, Sotomayor also determined that, at a minimum, EPA’s determination that the CWA provision at issue applies to existing and new facilities was a reasonable interpretation of the statute.

The industry plaintiffs filed petitions for certiorari, which the Supreme Court granted in April 2008 to review the cost-benefit issue.  By a vote of 6-3, the Court reversed.  In an opinion by Justice Scalia, the majority deemed “[i]t . . . eminently reasonable to conclude that” the CWA’s silence with regard to determining the best technology available “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”   Justice Stevens wrote a dissenting opinion, which was joined by Justice Souter and Ginsburg.  In their view, because “Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others” and intended “to control, not delegate, when cost-benefit analysis should be used,” Congress’s silence on this issue did not constitute “an invitation for the Agency to decide for itself which factors should govern its regulatory approach.”

Privacy and Information:  Sotomayor has encountered a wide variety of privacy and access-to-information issues in her time on the Second Circuit, including cases involving the Freedom of Information Act and employer searches of employee workspaces.

In two cases involving requests under the Freedom of Information Act (FOIA), Sotomayor wrote an opinion that declined to order the release of the requested information, explaining that she did not want to “unreasonably hamper agencies in their decision-making.”  Thus, in Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002), the panel denied a tax attorney’s request for a memorandum written by a Deputy U.S. Attorney outlining the office’s opinions and policies regarding tax investigations, notwithstanding that the memorandum had been cited in a publicly released report.   And in Wood v. FBI, 432 F.3d 78 (2d Cir. 2005), while acknowledging that FOIA exemptions should be construed “narrowly, resolving all doubts in favor of disclosure,” her opinion denied a reporter’s request for an FBI memorandum regarding local FBI agents accused of lying.  She reasoned that the “unwarranted invasion of privacy” for the individuals whose names would be released outweighed the public interest in disclosing a government employee’s identity.

In a case involving privacy issues, Leventhal v. Knapek, 266 F.3d 64 (2001), Sotomayor wrote an opinion that rejected a Fourth Amendment challenge to a public employer’s search of an employee’s computer after the employee was accused of being late, coming to the office infrequently, and spending his free time discussing personal computers with his coworkers.  Although she agreed that the employee had a “reasonable expectation of privacy in the contents of his office computer,” Sotomayor also cautioned that “workplace conditions can be such that an employee’s expectation of privacy…is diminished.”  Here, she explained, the search was permissible because it could have revealed employee misconduct.

Second Amendment:  Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year.  In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms.  The district court rejected the claim on the ground that the Second Amendment does not apply to the states.  On appeal, the panel affirmed.  Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms.  The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.”  And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”  Maloney’s lawyers intend to file a petition for certiorari in late June.

Voting Rights:  In Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), the en banc Second Circuit rejected a challenge under the Voting Rights Act to a New York law denying convicted felons the right to vote.  The plaintiffs in the case had argued that in light of the long history of discrimination, both in society and in the New York criminal justice system specifically, the state’s disqualification of felons constituted disqualification based on race.  The majority reasoned that Congress did not intend the VRA to apply to state felon disenfranchisement laws.  Moreover, extending the VRA to the state statutes would “alter the constitutional balance” between states and the federal government, and the VRA lacked a clear statement by Congress that it intended to upset that balance.

Sotomayor joined the main dissent from the en banc court’s decision but also wrote a short dissenting opinion of her own in which she opined that the issue was actually much simpler than the majority and concurring opinions would suggest:  the VRA “applies to all "voting qualifications,'” and – in her view – the state law “disqualifies a group of people from voting.”  “These two propositions,” she concluded, “should constitute the entirety of our analysis.”  Rejecting what she regarded as the majority’s failure to grapple with the plain text of the statute, she emphasized that “[t]he duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . .  But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.”

International Law:  Sotomayor wrote a dissenting opinion in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), which considered whether a ne exeat clause – that is, a clause prohibiting one parent from removing a child from the country without the other parent’s consent – constitutes a “right of custody” for purposes of the Hague Convention on International Child Abduction, thereby requiring the child’s return when the clause is violated.  In holding that the ne exeat clause does not constitute a “right of custody,” the majority – among other things – declined to attribute any weight to contrary holdings by courts in other signatory nations, dismissing them as “few, scattered, [and] conflicting.”  In her dissent, Judge Sotomayor concluded that the Convention’s drafters had in mind “a notably more expansive definition of custody rights” than the “parochial” definitions – from U.S. dictionaries – on which the majority relied.  Moreover, she noted, “most foreign courts to consider the issue” had held, as she would have, that a ne exeat clause does indeed constitute a “right of custody.”  Although certiorari was denied in the Croll case, the question is once again before the Supreme Court in No. 08-645, Abbott v. Abbott (disclosure:  Howe & Russell and Akin Gump represent the petitioner in the case).  In January 2009, the Court called for the views of the Solicitor General, who is expected to file her brief this month.  In an interesting coincidence, one potential candidate for the Supreme Court (Solicitor General Elena Kagan) will have the opportunity to comment on the merits of the opinion of another (Judge Sotomayor).

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