July 9th, 2009
12:35 PM ET
5 years ago

Analysis: What impact would Sotomayor have on the high court?

CNN Supreme Court Producer Bill Mears looks at the impact Sonia Sotomayor would have on the Supreme Court.
CNN Supreme Court Producer Bill Mears looks at the impact Sonia Sotomayor would have on the Supreme Court.

WASHINGTON (CNN) - If Sonia Sotomayor fulfills her long-held dream to sit on the Supreme Court, she would have the prestige of joining the highest court in the land, lifetime job security, and a public forum as the first Hispanic on that bench.

The 55-year-old judge would also have the opportunity to become a influential force among her colleagues, a legal pioneer who could help shape the law and its effect on society in any number of ways. But such a legacy would not come easily and it certainly would not come quickly. The internal dynamics of a body built on tradition and stability have long discouraged swift and sweeping forces that are regularly felt in the other branches of government, and society at large.

If confirmed by the Senate, Sotomayor would become the junior justice, someone with the least seniority but no less authority than her eight benchmates. She would bring with her a bit of history, along with the public attention and political scrutiny that would follow.

"It's a step forward for the country. Having someone who's in a permanent lifetime appointment at the highest levels of the government who has this background, both economically and ethnically, is a big deal, it's a moment," said Thomas Goldstein, co-founder of scotusblog.com whose has argued before the justices as a private attorney. "The idea that a Democratic president did this and embraced them in this way will not be forgotten."

After her swearing in, Sotomayor would quickly set up shop in her high court chambers. She would have a staff of aides and secretaries in place, as well as four law clerks to help her jump immediately into the caseload.

The urgency may be especially acute for her. The high court has scheduled an oral argument for an important campaign finance reform case for September 9, in the middle of its traditional summer recess, and almost a month before the justices normally begin their new term. If Sotomayor is confirmed by senators in time, she may have to cram in order to hear the case with her colleagues - no grace period or expanded learning curve.

Justice Stephen Breyer has said it took him a few years on the high court before he felt truly comfortable in the job, and he had already served as an appeals judge for 14 years before his elevation. It is a sentiment echoed by other justices - where the caseload, the pace of meeting deadlines, and the sheer enormity of the issues facing the court can seem initially overwhelming.

Her colleagues would warmly welcome their newest member, but she would soon find herself on her own. A myth of the court is that the justices operate as a unified bunch. The reality is that they are like nine little kingdoms, free to rule - on the cases before them and in their own chambers - as they see fit. Their work entails lots of reading, researching, and writing - most of it alone in front of a computer, maybe a writing pad, even typewriter.

No wonder the seeming glamour of sitting on the Supreme Court often gives way to a sense of isolation and loneliness for new justices. "When you put on the black robe, the experience is sobering," the late Justice Lewis Powell once remarked. "It makes you more thoughtful."

Powell said the biggest surprise when he joined the high court was how the justices communicated about the cases. Memos, mostly formal in tone and presentation, remain the norm. Phone calls from one justice to another are relatively rare, personal visits to chambers even more unusual. E-mails are not embraced, even in the digital age.

But such interaction is key. After oral arguments the court votes on a particular case, a justice is assigned at conference to write an opinion, another to write a dissent. The goal is to craft a majority ruling that would command the support of all the colleagues on a particular side, since it would create a unified front and make it easier to establish lasting precedent guiding future courts. That's where personal relationships matter.

Individual justices monitor what their colleagues are doing, collaborating to varying degrees on the language and scope of opinions, negotiating and engaging in a give-and-take. Sandra Day O'Connor in particular, before her retirement in 2006, was known inside the court for her backstage persuasiveness, while building a national persona as the first female justice.

"The justices learn about each other's views on the law and the Constitution, their strengths, their personalities," said Edward Lazarus, who wrote "Closed Chambers," an inside look at the court.

"But that takes time. Justices Breyer and O'Connor became close colleagues on the bench because they discovered a similar approach to deciding cases, but that developed slowly over several years. Justices (Ruth Bader) Ginsburg and (Antonin) Scalia are very close personally - they have similar intellectual and musical interests - and you can't help but think that has helped bridge some disagreements in some cases, despite their deep differences on the law."

Developing and nurturing that trust among differing personalities is not easy. Justice Oliver Wendell Holmes once described Supreme Court deliberations as "nine scorpions in a bottle," fiercely protective in carving out their own agendas and power bases.

By all accounts, the current court as a group gets along very well personally. They like each other, and each can appreciate the diverse, often tough road each took to get to where they are. They all know how exclusive is the club to which they have gained entry, how random and unpredictable was their nomination.

Yet this remains a profoundly divided court ideologically. A shaky conservative majority - roughly four liberals and five conservatives, with Justice Kennedy often a swing vote - has produced a simmering tension inside the marble walls of the court. As a presumed member of the progressive faction, Sotomayor could find herself on the losing end of many a fight over hot-button issues in the near future, relegating her to writing dissents.

She would operate in the shadow of Justice John Paul Stevens - at 89, the oldest member of the court and the undisputed leader of his liberal colleagues. That authority is built on his nearly 40 years of seniority, his quiet skills as a tactician, and his sharp writing prowess. Many liberal legal activists hope Sotomayor eventually follows the O'Connor model in crafting a power base inside and outside the court.

As a group, the justices have wide experience. All served as federal appeals court judges, so they know well the intricacies of interpreting constitutional and legislative precedent. "They are well-prepared, active, informed, engaged, with tough questioning (of lawyers) from the bench," said David Garrow, a Pulitzer Prize-winning historian and high court expert.

But the current court has by no means become a predictable group. One vote can tip the delicate ideological balance. Of the 79 full opinions issued last term, 23 were 5-4 votes, or about 29 percent. Most involved major issues such as workplace discrimination, broadcast indecency and DNA testing. Kennedy's views often proved decisive, and his influence remains undimmed.

Sotomayor would quickly discover the Supreme Court under Chief Justice John Roberts has not shied from taking on tough, timely cases. The fall 2009 docket includes appeals on religious displays on public land, Miranda rights, life sentences for underage criminals, and international child abductions.

This judicial confidence, said Garrow, gives "this court no second thoughts that it knows better than anyone else, especially the Congress, what is right."

Sotomayor would leave behind her family and friends in her native New York. She is not married, and observers say her work as a judge consumes much of her life. Colleagues say she has managed to find time for herself and pursue interests off the bench, but she has admitted that has not been an easy balance to maintain.

Lazarus, a former law clerk for Justice Harry Blackmun, remembered his former boss "carved out for himself a distinctly solitary existence. From 8 to 9 every morning, Blackmun would breakfast with us clerks in the court cafeteria," he remembered. "But as 9 o'clock approached, the justice's attitude and demeanor changed radically. As he shifted into work mode, Blackmun became unapproachable, a man consumed by a mantle of professional duty that fairly seemed to crush him."

While Blackmun was known by his colleagues for a prickly personality, his sense of struggling to live up to the responsibilities of the job rings familiar.

Sotomayor would bring a unique life experience - personally and professionally - to the job. She would come to it at a time of significant political and social change. The justice would have just one vote, and one voice. Whether she would thrive in the long run at her future home would depend to a large extent on her intellect, work ethic, and interpersonal skills. But forces outside her control - namely the future ideological makeup of the court and the unforeseen hot-button issues that would confront her - would ultimately shape the legacy she would leave.


Filed under: Sonia Sotomayor • Supreme Court
soundoff (24 Responses)
  1. Dutch/Bad Newz, VA

    She votes parallel to how Justice Souter votes on many issues. On issues that a womans experience will play a part, I think she will add a balance to the conservative views of most of the Justices.

    July 9, 2009 03:01 pm at 3:01 pm |
  2. yuri

    So Sonia, what's your opinion on abortion? We are acutely aware that it ain't gonna matter in your confirmation hearings. You have quite a checkered history like all else, and it's perfectly normal.

    July 9, 2009 03:13 pm at 3:13 pm |
  3. Pat F

    What would the most reversed Judge in the whole court of appeals system add to the Supreme Court? I guess she'd add LEGAL STUPIDITY – otherwise known as Latina Wisdom.

    July 9, 2009 03:13 pm at 3:13 pm |
  4. marlene

    I'll lend support to the majority of Americans who think that Judge Sotomayor is highly qualified to become a Supreme Court justice. The Republican Senators should carefully consider their remarks, about her personally, during the up coming hearings. America is watching.

    July 9, 2009 03:18 pm at 3:18 pm |
  5. d1120

    She'll be a typical democrat....what do you expect.

    July 9, 2009 03:18 pm at 3:18 pm |
  6. Steve (the real one)

    As I said before, one liberal replacing another! No loss, no gain! One thing to think about is her silence on the abortion question. Exactly how Catholic is she?? We will know soon enough!

    July 9, 2009 03:23 pm at 3:23 pm |
  7. Jim

    What she will bring to the court is an opinionated, bigoted attitude and a "latina" chip on her shoulder. And let's stop pretending that her appointment isn't a foregone conclusion. There will be a pretense of a "rigorous" examination; they will bring up her obvious faults (just so they can claim to have addressed them), and pass on to the inevitable confirmation.

    July 9, 2009 03:31 pm at 3:31 pm |
  8. stevie raymie

    what could she possible know about all of the white mans problems

    July 9, 2009 03:33 pm at 3:33 pm |
  9. make it more human

    the existing court works hard, but it definately could use her voice

    July 9, 2009 03:34 pm at 3:34 pm |
  10. GI Joe

    Watching riots in Tehran on MSNBC – maybe we need to take a lesson and take our complaints to Washington DC. Outside the Senate Office Building and their underground transportation!!!

    July 9, 2009 03:34 pm at 3:34 pm |
  11. Paul, CA

    We are so in trouble if this woman serves on the Supreme Court. What ever happened to objectivity. Anyone know what happened to the blindfold????

    July 9, 2009 03:35 pm at 3:35 pm |
  12. Paul C.

    There is no doubt that Sotomayor will have an impact on the Supreme Court and, I fear, not for the better. She will be a standard bearer for La Raza and work towards making this the northern suburb of Mexico.
    There is nothing you can do to stop the Spanishization of the U.S. but you can only try to slow it.

    July 9, 2009 03:36 pm at 3:36 pm |
  13. Trade Freedom for Security, Lose Both

    I guess the remaining 6 white guys on the bench won't even have to show up for work any more. Everyone knows that Sotomayor is much smarter than white guys – she even said so herself.

    July 9, 2009 03:38 pm at 3:38 pm |
  14. Padraig

    My concern is that many of her rulings have been reversed, so her compentency is in question.

    In regards to being Catholic well so is Kennedy, Polosi, Moynahan, Kerry, etc... They are only Catholic in name only.

    July 9, 2009 03:38 pm at 3:38 pm |
  15. Fair is Fair

    Steve (the real one) pondered,

    "One thing to think about is her silence on the abortion question. Exactly how Catholic is she?? We will know soon enough!"
    _________________________________

    Provided some senator on the judiciary committee has the stones to ask the question.

    July 9, 2009 03:39 pm at 3:39 pm |
  16. David from WI

    """America is watching."""

    You are right marlene it is and that is why Obamas poll numbers are 'tanking' along with the economy.

    That must be Bushes fault too huh... did he inherit those poll numbers from Bush?

    Racism and hatred isn't only unique to one group. I will not pre judge her but will be watching what she says and how she responds not just give her a pass.

    Both parties have to do that but only one side has to LISTEN to the American people. The other side (right) doesn't have the votes to make a difference.

    You bet your butt America is watching what the left does and how they handle majorities in Senate and house and the presidency.

    Being a sore looser is one thing being a smug snarky winner says just as much if not more.

    July 9, 2009 03:40 pm at 3:40 pm |
  17. June in FL

    Let's not forget all the flaws pointed out of the already sitting Justices before they were chosen. No one in the whole justice system/government is perfect, but at least she is the most qualified on day one compared to the already sitting Justices when they first started. African-American, Caucasion, Asian, Latino.....who cares. She is qualified!

    July 9, 2009 03:41 pm at 3:41 pm |
  18. djb

    To Pat F
    Percentage wise Judge Roberts is the most reversed judge on the Supreme Court. Two out of two of his decisions were reversed. Five of six (83%) of Sotomayor's were. But note how few decisions of the many that these judges made were reviewed and reversed.

    Watch how you use "most reversed".

    July 9, 2009 03:42 pm at 3:42 pm |
  19. Willy Brown

    As she said, she's an A A baby so her impact would be for those who are clueless and on the wrong side of the law.

    July 9, 2009 03:42 pm at 3:42 pm |
  20. Lisa in Shelton

    several previous responders are watching too much FAUX news. Of her thousands of decisions, a handful had appeals heard by the SC, about half were overturned (the very reason we have the SC in place) – so this misleading charge from the GOP dopes is completely discounting her >3000 "correct" decisions and folks who have a brain should do the math.

    July 9, 2009 03:43 pm at 3:43 pm |
  21. Native NY

    And where did you get the statistic that she's the most reversed judge in the whole court of appeals? Per most experts, she has an average to below average rate. By the way, if you're going by percent of cases that went to the Supreme Court that were reversed by the Supreme Court, Alito was reversed 100% of the time.

    July 9, 2009 03:47 pm at 3:47 pm |
  22. Bobby Wightman-Cervantes

    What is sad is, because she is a Latina she will be given a free ride. As a Latino I can tell you there are a lot of more qualified Latinas ready to be Supreme Court justices. Obama insulted the entire Latino community with the nomination of a judicial activists.

    The Republicans are not stupid – they will let this one ride and then use the hearings to defeat at least 5-7 Democratic Senators in 2010. Sotomayor will be the Democrats biggest nightmare in 2010 and they will deserve it. Obama threw every Democrat facing a close 2010 reelection under the bus on this one.

    I am no Republican – they are everything truly wrong with the US – but Obama on this one insulted the Latino community, and killed his 60 vote majority in the Senate – Sotomayor will guarantee Obama is a one term president with no accomplishments – and he will deserve it.

    July 9, 2009 03:49 pm at 3:49 pm |
  23. Thomas

    " confirmed by the Senate, Sotomayor would become the junior justice, someone with the least seniority but no less authority than her eight benchmates."

    CNN, What actually is the point of this sentence? Who cares about seniority if they have the same authority in this context?

    So your political analysts are telling us that the newest member of the Supreme Court will have the least senority on the Supreme Court?

    Sure you want to go out that far on a limb? That is some pretty heavy political analysis there. You might want to study this a little more before making such statements.

    July 9, 2009 03:51 pm at 3:51 pm |
  24. Henry Miller

    What impact would Sotomayor have on the high court? The woman is a racist, and I suspect that's not going to go away just because she has a new job.

    July 9, 2009 03:55 pm at 3:55 pm |