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On Net, No Change? Not Quite
Posted By Andrew M. Grossman On May 26, 2009 @ 5:46 pm In Legal | Comments Disabled
Eight hours later, and it’s already become an old canard: Judge Sonia Sotomayor’s elevation to the High Court won’t affect its balance one bit. It may be an effective talking point—the Left seems to think so—but it isn’t true.
Consider just one area of law, business law. As concerns businesses and economic matters, Justice David Souter often rejected the activist “empathy” standard promoted by President Barack Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and the rule of law.
Judge Sotomayor, however, does not always evince this restraint. In case after case, her “empathy” instinct has run amok. Of the seven of the cases in which her decisions have been reversed or rejected by the Supreme Court (out of the eight total that the Supreme Court has reviewed), six concern business law. A survey of those cases suggests that Sotomayor harbors antipathy for businesses:
In other cases not reviewed by the Supreme Court, Judge Sotomayor has consistently ruled against businesses and employers. For example, in a column today , Prof. Richard Epstein describes a recent takings case heard by Sotomayor. The panel on which she sat affirmed, in all of one sentence, the dismissal of a suit challenging a government taking of land slated for business development after the developer failed to pony up $800,000 to another developer chosen by the city for the privilege of building a pharmacy on his own land. “American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court,” writes Epstein.
These cases are probably not anomalies. Judge Sotomayor’s anti-business bias is, in fact, well known. As legal scholar Michael Greve explains :
She is among the most aggressively pro-plaintiff, anti-business appellate judges in the country. Her rulings in class actions, preemption cases, and other commercial matters are of a piece with her contempt for property rights (noted by Richard Epstein) and her anti-employer bias in discrimination cases (a matter of notoriety).
Of course, it is possible that Sotomayor is motivated less by an anti-business animus than by law, and that the businesses which come before her court have legitimately led to her lopsided record. But so many who have appeared before her seem to say otherwise. This issue deserves scrutiny in the weeks ahead.
For now, there is reason to be concerned. Justice Souter often supplied the crucial fifth vote in business law cases coming before the High Court. From what we know, Judge Sotomayor stands to upset the balance of the Court and disrupt the law that governs economic affairs.
Update: According  to the Wall Street Journal, “Her record in more than 4,000 cases, including those from 11 years on the Second Circuit, shows her occasional siding with corporate defendants or diverting from a standard liberal position.” (Emphasis added) Does this justify the Journal’s subhed, “Despite Democratic Bent, Judge Has Sided With Corporate Defendants”? Isn’t the implication that a true Democrat judge would never side with a party that happens to be a corporation? If so, that’s a really low bar for applying the law neutrally and impartially.
Article printed from The Foundry: Conservative Policy News Blog from The Heritage Foundation: http://blog.heritage.org
URL to article: http://blog.heritage.org/2009/05/26/sotomayor-souter-no-change/
URLs in this post:
 rejected the activist “empathy” standard : http://www.heritage.org/Research/LegalIssues/wm2424.cfm
 column today: http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor.html
 explains: http://bench.nationalreview.com/post/?q=YTBiY2Q0NmNjNmY5ZjE2Zjc3YjdjMjQyM2JlNTg4ZGQ=
 According: http://online.wsj.com/article/SB124338260937756559.html
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