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Judge Sotomayor Q&A: How will she change the balance of the court?

Wake Forest University School of Law professors weigh in on the impact Second Circuit Court of Appeals Judge Sonia Sotomayor will have on the U.S. Supreme Court as its newest justice. This is one in a series of faculty discussions regarding current legal topics.

Wake Forest University School of Law professors weigh in on the impact Second Circuit Court of Appeals Judge Sonia Sotomayor will have on the U.S. Supreme Court as its newest justice. This is one in a series of faculty discussions regarding current legal topics.

With Justice Souter’s departure, how will Judge Sotomayor change the current balance of the court?

Professor Ron Wright

Ron Wright

Executive Associate Dean for Academic Affairs; Professor of Law

In my area of criminal justice, she’s actually not going to make much difference because there’s a pretty widespread consensus among conservative and more liberal appointees about how to respond to the different criminal justice questions. For instance, on the Second Circuit she ruled for government about 86 percent of the time. We’re not going to see a big change in her except maybe on a few warrant cases and a few search-and-seizure cases. With a few exceptions in the criminal area, she won’t make much of a difference. She may make more of a difference in the civil rights cases. She has more of a 52-48 percent record that political scientists have studied when it comes to civil rights decisions. The statutory civil rights cases are where you will see more change happen. You have to go area by area.

Professor Suzanne Reynolds

Suzanne Reynolds

Professor of Law

One easy answer is that she won’t change it. He (Souter) is a member of the liberal wing of the bench even though he was appointed by George H. W. Bush and she, we believe, will be a part of the liberal wing of the bench, so the short answer is she won’t change it at all but we really don’t know how she’ll change it. Justice Souter moved some when he first joined the bench. He was probably slightly right of center and over the course of his years on the U.S. Supreme Court, he moved. So we just don’t know. He was, if you remember, called the stealth justice. When he was appointed he had been very briefly at the New Hampshire Supreme Court and hadn’t handled many issues that would be before him as a federal court judge so we really didn’t know. That’s how he got the name stealth justice and she may be, too, even though she has had 17 years experience on the bench and those years have been spent following Supreme Court precedent. One thing we do know about her is her allegiance to precedent. That’s what’s earned her the appellation as a very mainstream judge because she believes in stare decisis. She is a mainstream judge who follows precedent. When she’s on the United States Supreme Court she’s not going to be following precedent, she’s going to be making it. Many of the issues the Supreme Court treats are issues of first impression, so she’ll be creating precedent. How she’ll be when she’s creating precedent we really don’t know. You know I bet she doesn’t know. It will take those cases of first impression when she’s analyzing it and writing opinions for the first time when she herself will realize what kind of justice she’ll be.

Professor Sid Shapiro

Sid Shapiro

It’s difficult to tell. The conventional wisdom is that because she is replacing Justice Souter that the balance in the court will stay exactly the same. As most people know the court is currently divided four, four and one: with four judges who have been described as liberal and four justices described as conservative and Justice Anthony Kennedy in the middle. In fact, a recent study of recent decisions shows that last year there was an unprecedented number of five-four decisions. That’s more split decisions five-four than any other time we’ve been counting. And in 92 percent of those cases Justice Kennedy was in the majority. So it’s really Justice Kennedy’s court and if you get his vote, you win the case. So if it’s viewed that way, one would think she wouldn’t have much impact at all. On the other hand, the justices confer, they debate and you have influence by how you approach the other justices. And even if it’s just getting Justice Kennedy to come to your side of the issue, that could have an important impact because he is the fifth vote. So often it was said that Justice Marshall’s influence on the court in large part was based on his background and experience. He could say to the other justices you really need to take this dimension of the case into account. And to the extent that she brings some differences to the court that could impact in the long run and in the short run by affecting Justice Kennedy’s vote.

Continue to part 3 »