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Shortly after President Barack Obama announced Sonia
as his pick for the Supreme Court, conservatives pulled this bit out of their arsenal:
is not up to the job because some of her cases have been thrown out by the Supreme Court.
Wendy E. Long of the Judicial Confirmation Network was one of the first to knock Sotomayor's record, saying that she "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." Wendy Wright of Concerned Women for America echoed that talking point, saying that Sotomayor's "high reversal rate alone should be enough for us to pause and take a good look at her record."
Then there was this from the Libertarian National Committee: " Sotomayor has had her rulings thrown out by the court a troubling four times." We learned pretty quickly that the veracity of this statement depends on a few variables.
Let's start by looking at Sotomayor's 11-year tenure on the 2 nd U.S. Circuit Court of Appeals. We found that she has authored hundreds of officially published majority opinions — the White House puts the exact number at 380 — and of those, six have been heard by the Supreme Court.
Three have been reversed: Riverkeeper Inc. vs. EPA ; Merrill Lynch vs. Dabit ; and Malesko vs. Correctional Services Corp . Among the other three cases: The Supreme Court affirmed her ruling in Empire Healthchoice Assurance Inc. vs. McVeigh . It affirmed her ruling but but unanimously rejected her reasoning in Knight vs. Commissioner of Internal Revenue . The sixth case, Ricci vs. DeStefano , is still pending. So her record so far at the appellate level is three reversals, two upheld and one pending.
There's also her time on the U.S. District Court between 1992 and 1998. One of her rulings, Tasini vs. New York Times, et al. , was reversed by the Supreme Court in 1997. That's how the Libertarian Party gets to its total of four reversed opinions.
Keep in mind that other Supreme Court justices have seen their share of reversals. For the sake of comparison, Supreme Court Justice Samuel Alito, like Sotomayor, wrote hundreds of majority opinions during his 16-year tenure on the 3rd U.S. Circuit Court of Appeals. At least two of those were heard by the Supreme Court and both were reversed: Jo Anne B. Barnhart , Commissioner of Social Security, Petitioner vs. Pauline Thomas and Rompilla vs. Beard .
We were also caught up by the word "troubling" in the Libertarian Party's statement, so we turned to Stephen Wermiel , a law professor at American University Washington College of Law, for some perspective. In fact, the Supreme Court increasingly has a reputation for reversing most of the approximately 80 cases it hears every term, Wermiel said. Indeed, according to data compiled by SCOTUSblog .com, the Supreme Court's reversal rate in 2008 was 85 percent, 61 percent in 2007, and 72 percent in 2006.
Having a case reversed "is not a badge of shame, or a stigma of stupidity or inferiority," Wermiel said. "It's a sign that reasonable minds had a different approach to the issue."
Tom Goldstein , a partner at law firm Akin Gump and author of SCOTUSblog .com, agreed. "In a career as long as [ Sotomayor's ], she's easily in the mainstream," compared to the reversal rate of other judges.
"The numbers game is childish," said Michael Greve, a legal scholar at the conservative American Enterprise Institute. "You are dealing with all of six cases. What of it?" The best way to evaluate Sotomayor — or anyone else nominated to the highest court — is to look at individual opinions, he added.
So the Libertarian Party is correct that Sotomayor was reversed four times: three at the appellate level and one at the district court level. But this is out of hundreds of potential cases. Furthermore, the Libertarian Party's implication that four cases represents a high rate of reversal just doesn't hold up. Her record is not far off from another well-known justice, Samuel Alito , nor is it at all unusual for the Supreme Court to reverse most of the cases it hears every year, according to legal experts we spoke to. We rate their statement Half True.
Judicial Confirmation Network, Statement on Sonia Sotomayor , accessed May 27, 2009
Concerned Women for America, Statement on Sonia Sotomayor , accessed May 27, 2009
Libertarian National Committee, Statement on Sonia Sotomayor , accessed May 27, 2009
CNN, Sotomayor's Resume, Record on Notable Cases , May 26, 2009
White House, Daily Press Briefing , May 26, 2009.
Slate.com, In Defense of the 9th Circuit , by
CNN, Alito's Record Reveals Conservative, Cautious Judge , by Bill Mears, Jan. 28, 2006
SCOTUSblog, Supreme Court Statistics , accessed May 28, 2009
Interview with Stephen Wermiel , professor of law at American University Washington College of Law, May 27, 2009.
Interview with Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of SCOTUSblog, May 27, 2009
Interview with Michael Greve,
John G. Searle Scholar at the American Enterprise Institute, May 28, 2009
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