Font ResizeThe Washington Post asked legal experts what could be expected from the Supreme Court during Justice Sonia Sotomayor's first year.
BRADFORD A. BERENSON
Associate counsel to President George W. Bush from 2001 to 2003; partner at Sidley Austin LLP
The really interesting question is how different, if at all, Justice Sonia Sotomayor will be from former Justice David Souter in the cases where her vote really matters. The big surprise from her first year may well be that, in the relatively few 5 to 4 cases where her views differ meaningfully from his, she will move the court to the right.
Sotomayor's instincts appear to be more conservative than Souter's in several areas. She is probably more sympathetic to the holders of intellectual property rights. With her background as a prosecutor, she weighs the needs and interests of law enforcement more heavily than he did. There are indications that she might also be more sensitive to and respectful of national security concerns than Souter.
The docket includes important cases where these differences could come into play. Her views could lead to the narrowing of the last term's decision holding that crime lab analysts must provide live testimony concerning lab tests and results. Souter supplied the fifth vote in that case, which drew a strong dissent from Anthony M. Kennedy and has been criticized by prosecutors as unworkable. This term, Briscoe
Sotomayor will take a while to settle into the job, and the first year won't necessarily provide a reliable indication of the nature and extent of her ultimate influence on the court. But cases like these could be an interesting bellwether.
MARIA ECHAVESTE
Former deputy chief of staff to President Bill Clinton; founder of the government relations firm Nueva Vista Group; lecturer at the University of California at Berkeley School of Law
In light of the right-wing hysteria that a Justice Sonia Sotomayor would inappropriately focus the Supreme Court's attention on minority, gender and social justice issues, some will be looking to see Sotomayor make rookie mistakes. They will surely be disappointed. With her 17 years of judicial experience, it's more likely that the new justice will be thoughtful, careful and measured. Yet given the cases already argued and those on deck — the Hillary Clinton infomercial case on campaign finance and the Chicago gun control case in particular — we may see soon whether court dynamics have been changed by the addition of this New Yorker of Puerto Rican heritage. It may be that Chief Justice John G. Roberts will seek her support on major cases in hopes of reducing the stark division heretofore exhibited on the court. This may result in more moderate decisions than might otherwise have emerged. As the Republicans who voted against her were acutely aware, this is the court that actually makes law by applying the law, provided you get at least five votes, and still better if you get six.
PAUL D. CLEMENT
Solicitor general from June 2005 to June 2008; partner in the Washington office of King & Spaulding and head of the firm's national appellate practice
By adding cases last week on the Second Amendment and material support of terrorism to an already diverse docket, the Supreme Court all but guaranteed that this term will be one to remember. Some of its highest-profile cases will force justices to choose between competing instincts. Take the issue of whether the Second Amendment protects citizens against state and local gun control laws: Justices who are the most bearish on Second Amendment rights are also likely to be the most bullish on "incorporating" federal rights against states, and vice versa.
Similar crosscurrents arise in a case involving a federal civil commitment statute for violent sexual offenders, an area of traditional state concern.
Particularly noteworthy will be cases in areas in which former Justice David Souter sometimes provided the fifth vote. Both business cases (he cast the fifth vote to reduce the punitive damages in the Exxon Valdez case) and criminal procedure/sentencing cases (he was often the fifth vote in an unusual alliance with a pro-defendant view of the Sixth Amendment) fit this bill. These cases will tell us a great deal about the newest justice and the court's future direction.
ERWIN CHEMERINSKY
Founding dean of the School of Law at the University of California at Irvine.
What weight will the Roberts court give to precedent? Only on occasion in the past four years has the Roberts court expressly overruled prior decisions; instead, it has mostly implicitly reversed them in moving the law in a more conservative direction. This term, several of the most important cases directly raise the question of whether precedent should be overruled.
In Citizens United v. Federal Election Commission, argued on Sept. 9, the court is considering whether to overrule earlier decisions that upheld restrictions on corporate spending in election campaigns. In Salazar v. Buono, argued last week, the court considers whether a large cross on previously federal property violates the Constitution's establishment clause. There may be five votes on the court to make it much more difficult for anyone to challenge religious symbols on government property, or to allow such symbols in most instances. In McDonald v. City of Chicago, the court will consider whether to overrule 19th-century decisions holding that the Second Amendment does not apply to state and local governments.
In all three areas, the five conservative justices — John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito — likely favor a significant change in the law. These cases will give a sense of how much precedent will matter and how far the Roberts court will go in moving constitutional law in a conservative direction.
