Judge Sonia Sotomayor: Analysis of Selected Opinions

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Judge Sonia Sotomayor:

Analysis of Selected Opinions

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Legislative Attorney

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Legislative Attorney

September 15, 2009

Congressional Research Service

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www.crs.gov

R40649

CRS Report for Congress

Prepared for Members and Committees of Congress

Judge Sonia Sotomayor: Analysis of Selected Opinions

Summary

In May 2009, Supreme Court Justice David Souter announced his intention to retire from the

Supreme Court. Several weeks later, President Obama nominated Judge Sonia Sotomayor, who

served on the U.S. Court of Appeals for the Second Circuit, to fill his seat. To fulfill its

constitutional “advice and consent” function, the Senate considered Judge Sotomayor’s extensive

record—compiled from years as a lawyer, prosecutor, district court judge, and appellate court

judge—to better understand her legal approaches and judicial philosophy. On August 6, the

Senate confirmed Justice Sotomayor by a vote of 68-31, and she was sworn in on August 8.

This report provides an analysis of selected opinions authored by Judge Sotomayor during her

tenure as a judge on the Second Circuit. Discussions of the selected opinions are grouped

according to various topics of legal significance. As a group, the opinions belie easy

categorization along any ideological spectrum. However, it is possible to draw some conclusions

regarding Judge Sotomayor’s judicial approach, both within some specific issue areas and in

general.

Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge

has been an adherence to the doctrine of stare decisis (i.e., the upholding of past judicial

precedents). Other characteristics appear to include what many would describe as a careful

application of particular facts at issue in a case and a dislike for situations in which the court

might be seen as overstepping its judicial role.

It is difficult to determine the extent to which Judge Sotomayor’s style as a judge on the Second

Circuit will predict her style as a Supreme Court justice. However, as has been the case

historically with other nominees, some of her approaches may be enduring characteristics.

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Judge Sonia Sotomayor: Analysis of Selected Opinions

Contents

Introduction ................................................................................................................................1

First Amendment: Free Speech....................................................................................................2

Speech of Government Employees ........................................................................................4

Prisoner Speech Rights ......................................................................................................... 5

Student Speech......................................................................................................................5

First Amendment: Religion .........................................................................................................6

Religious Freedom Restoration Act .......................................................................................6

Prisoner Free Exercise Rights................................................................................................7

Second Amendment: Incorporation .............................................................................................8

Article I: Commerce Clause ...................................................................................................... 10

Article II: Executive Power ....................................................................................................... 12

Civil Rights: Generally ............................................................................................................. 13

Civil Rights: Individuals with Disabilities ................................................................................. 18

Election Law............................................................................................................................. 20

Ballot Access ...................................................................................................................... 20

Voting Rights Act and Felony Disenfranchisement .............................................................. 21

Abortion ................................................................................................................................... 23

Freedom of Information Act ...................................................................................................... 26

Exemption 5........................................................................................................................ 26

Exemption 6........................................................................................................................ 28

Criminal Law............................................................................................................................ 29

Fourth Amendment ............................................................................................................. 30

Reasonableness of a Search or Seizure .......................................................................... 31

Exclusionary Rule......................................................................................................... 32

Police Immunity.................................................................................................................. 34

Sixth Amendment and Habeas Corpus ................................................................................ 37

Jury Selection ............................................................................................................... 37

Right to Counsel ........................................................................................................... 38

International Issues ................................................................................................................... 40

Hague Child Abduction Convention .................................................................................... 40

Alienage Jurisdiction........................................................................................................... 43

Common Law Revenue Rule............................................................................................... 45

Immigration .............................................................................................................................. 46

Labor Law/Antitrust.................................................................................................................. 47

Environmental Law................................................................................................................... 49

Securities Law .......................................................................................................................... 50

Preemption by the Securities Litigation Uniform Standards Act........................................... 51

Deference to SEC................................................................................................................ 53

Insider Trading: Misappropriation Theory ........................................................................... 54

Standing.............................................................................................................................. 54

Sarbanes-Oxley................................................................................................................... 55

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Judge Sonia Sotomayor: Analysis of Selected Opinions

Taxation.................................................................................................................................... 55

Government Contractors and Bivens Actions ............................................................................. 57

Contacts

Author Contact Information ...................................................................................................... 59

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Judge Sonia Sotomayor: Analysis of Selected Opinions

Introduction

On May 26, 2009, President Obama nominated Judge Sonia Sotomayor of the U.S. Court of

Appeals for the Second Circuit to fill the Supreme Court seat that was vacated by retiring Justice

David Souter. On August 6, the Senate confirmed Justice Sotomayor by a vote of 68-31, and she

was sworn in on August 8.

Judge Sotomayor had served on the Second Circuit since 1998. Before her appointment to the

Second Circuit, she served as a federal district court judge for the U.S. District Court for the

Southern District of New York. Prior to her role on the federal bench, she worked as a prosecutor

and spent several years as an attorney in private practice.

This report analyzes selected cases authored by Judge Sotomayor during her tenure on the Second

Circuit, including majority, concurring, and dissenting opinions in areas of legal significance. In

some instances, it also discusses an opinion authored by Judge Sotomayor while she was a district

court judge or a per curiam (“by the court”) opinion for which Judge Sotomayor served on the

panel of judges that ruled in the case.

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. In

particular areas, a general substantive approach may be discerned. For example, her appellate

court opinions in cases involving suits by individuals with disabilities could be seen as appearing

to favor plaintiffs’ claims, and in various areas of international concern, she could be said to have

shown a tendency to make the Second Circuit available to plaintiffs unless circuit precedent and

the political branches have indicated otherwise.

General characteristics of her approach to the judicial role are more easily identified. Perhaps the

most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be

described as an adherence to the doctrine of stare decisis (i.e., the upholding of past judicial

precedents). This characteristic would be in line with the judicial philosophy of Justice Souter,

who often displayed special respect for upholding past precedent. 1 Another characteristic of Judge

Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at

issue in a case, which may inform whether past judicial precedents from the circuit are applicable.

Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain

meaning of the text but, in the face of ambiguous language, appears willing to consider the intent

and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for

situations in which the court oversteps the role called for by the procedural posture of a case. For

example, in a dissenting opinion in a Fourth Amendment case, issued in May 2009, she wrote that

the court had overstepped its role by delving into the facts in a case involving review of a denial

of a motion for summary judgment.2

While many of her judicial approaches may be enduring, some shifts in her legal conclusions may

naturally arise because of the difference in the roles of a circuit court judge versus a Supreme

Court justice. Whereas circuit court decisions are often bound by relevant Supreme Court

In what is perhaps the best-known case in connection with Justice Souter, Planned Parenthood v. Casey, 505 U.S.

833, 854 (1992), he joined a plurality opinion which upheld Roe v. Wade. The plurality opinion stated that “the rule of

law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition,

indispensable.”

Kelsey v. County of Schoharie, 2009 U.S. App. LEXIS 10985 (2d Cir. 2009).

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Judge Sonia Sotomayor: Analysis of Selected Opinions

precedents, the Supreme Court more often considers issues of “first impression” (i.e., issues for

which no relevant precedent governs the outcome). In addition, Supreme Court justices have

greater control over their docket than do circuit court judges, and they review cases originating in

state and federal courts throughout the nation. In contrast, as a judge on the Second Circuit, Judge

Sotomayor typically reviewed cases that originated in federal courts in Vermont, New York, and

Connecticut.

The jurisdictional area and the nature of the Second Circuit affects the range of subjects in which

Judge Sotomayor has had an opportunity to author opinions as an appellate judge. For example,

because only one of the states in the Second Circuit’s area authorizes the death penalty, she has

not has been called upon to review a case involving a death sentence. Nonetheless, during her

more than a decade on the Second Circuit, she wrote opinions in many issue areas that were of

interest to the Senate during its deliberations. The following discussion analyzes pertinent

opinions authored by Judge Sotomayor in several of these areas.

First Amendment: Free Speech3

The First Amendment of the Constitution provides that “Congress shall make no law ... abridging

the freedom of speech, or of the press.... ”4 As a Supreme Court Justice, Judge Sotomayor will

help to decide at least one potentially significant free speech case in this term. The Supreme

Court has agreed to hear argument in a case that will evaluate the constitutionality of a federal

law that criminalizes depictions of animal cruelty. 5 One of the questions before the Court will be

whether to recognize depictions such as those covered by the statute as a category of speech that

is exempt from First Amendment protection.6 This may be significant because the Supreme Court

has not created a new category of exempted speech for over 25 years.7

Judge Sotomayor’s decisions interpreting the Free Speech Clause do not appear to be considered

particularly controversial. To the extent that a pattern can be discerned, some might point to a

meticulous recitation of the facts and her application of precedent from the Supreme Court or the

Second Circuit to those facts.8 Consequently, it does not appear possible to discern a particular

ideology from her opinions or to determine whether she would favor a more or less expansive

application of the Free Speech Clause of the First Amendment.

This portion of the report was prepared by (name redacted), Legislative Attorney.

U.S. Const. Amdt. I.

See Petition for Writ of Certiorari, United States v. Stevens, 533 F.3d 218 (3d Cir. 2008), cert. granted, 129 S. Ct.

1984 (April 20, 2009) (No. 08-00769).

See United States v. Stevens, 533 F.3d 218 (3d Cir. 2008) (declining to find depictions of animal cruelty to be outside

the bounds of the First Amendment, because the Supreme Court had not yet addressed the question).

See Stevens, 533 F.3d at 224 (citing New York v. Ferber, 458 U.S. 747 (1982) as the last time the Supreme Court

declared an entire category of speech unconstitutional).

See, e.g., Papineau v. Parmley, 465 F.3d 46 (2006). Judge Sotomayor ruled against officers who were arguing for

qualified immunity in a civil suit filed against them for violating plaintiff’s First Amendment right to protest. When

attempting to break up the protest, the officers involved did not order the protestors to disperse. The officers, instead,

stood in a line, waited 35 seconds, then charged into the crowd arresting people indiscriminately. Because the

circumstances did not appear to suggest imminent harm from the protest, Judge Sotomayor held that the officers should

have issued a dispersal order before beginning to arrest people.

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For example, in Center for Reproductive Law and Policy v. Bush,9 Judge Sotomayor, writing for

the Second Circuit, dismissed a First Amendment challenge to the “Mexico City Policy,” which

restricted foreign non-governmental family planning organizations in receipt of U.S. funds from

providing or promoting abortions. The Center for Reproductive Law and Policy (“CLRP”) argued

that the policy restricted its First Amendment right to communicate with foreign nongovernmental family planning organizations that fell under these prohibitions. Judge Sotomayor

applied Second Circuit precedent that had dismissed a nearly identical challenge to the policy and

found that the Mexico City policy did not prevent the CLRP from exercising its first amendment

rights. On the other hand, in U.S. v. Quattrone,10 in another opinion authored by Judge

Sotomayor, the Second Circuit overturned a gag rule placed upon the press by the district court.

Sotomayor noted that the gag order was a prior restraint and that such speech suppression is

among the least tolerated forms of suppression under the First Amendment. Applying Supreme

Court precedent articulated in Nebraska Press Association v. Stuart,11 Sotomayor held that the

district court had not sufficiently justified the gag order and thus overturned it.

Another case analyzing the constitutionality of a prior restraint was Doe v. Mukasey.12 Judge

Sotomayor was part of a unanimous three-judge panel that declared portions of the USA

PATRIOT Act unconstitutional. The case considered provisions of the act that prohibited

recipients of national security letters (NSLs) from disclosing the fact that they had received the

letters, an issue on which the Supreme Court has yet to speak directly. The panel, therefore,

applied Supreme Court precedent related to prior restraints articulated in Freedman v.

Maryland.13 The panel, however, appeared to do so with attention to Supreme Court decisions

that indicate courts owe a higher degree of deference to the Executive Branch in matters of

national security. 14

In Freedman, the Supreme Court held that, in general, where an expression is conditioned on

government permission, three procedural protections are needed to guard against impermissible

censorship: (1) restraint prior to judicial review must be only for “a specified brief period”; (2)

any further restraint prior to a final judicial determination must be limited to “the shortest fixed

period compatible with sound judicial resolution”; and (3) the burden of going to court to

suppress speech and the burden of proof in court must be placed on the government. 15 The

Second Circuit was able to construe most of the provisions at issue to avoid constitutional

difficulties related to the first two requirements. However, the panel found that one of the

provisions of the act contradicted Freedman’s third requirement regarding the burden of bringing

an action.

Another provision of the act treated certification on the part of government officials that the

disclosure might endanger national security or interfere with diplomatic relations as conclusive

evidence to sustain the government’s burden of proof. The panel held that a certification was not

304 F.3d 183 (2d Cir. 2002).

402 F.3d 304 (2d Cir. 2005). The district court had forbidden the press from publishing the names of the jury in

Quattrone’s trial, but the judge had made no findings of fact regarding the harms that might flow from such publication

and the names of the jurors had been announced, more than once, in open court.

427 U.S. 539 (1976).

549 F.3d 861 (2d Cir. 2008).

380 U.S. 51 (1965).

549 F.3d at 870-873.

380 U.S. at 58-59.

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Judge Sonia Sotomayor: Analysis of Selected Opinions

enough to meet the burden of proof standard set out in Freedman. The panel, therefore, partially

invalidated the provisions at issue, but did not find the provisions to be unconstitutional in their

entirety. Instead, the panel remanded the case to allow the government the opportunity to comply

with the proper constitutional standards.

Speech of Government Employees

In Pappas v. Giuliani,16 Judge Sotomayor demonstrated a willingness to express a difference of

opinion on the application of precedent to a set of facts, albeit without appearing to step outside

the bounds of established case law. A majority of a panel of judges on the Second Circuit upheld

the decision of the New York City Police Department (NYPD) to fire an officer for expressing

racist sentiments against a First Amendment challenge. The officer’s speech was made in

anonymous writings that he sent in reply to solicitations for charitable donations, and the speech

was not made in relationship to his employment. Under Supreme Court precedent, public

employees may have a claim against their employers if an adverse employment action is taken

against employees because they expressed their opinions on matters of public concern.17

However, employees’ freedom to speak on matters of public concern is balanced against the

state’s interest in the performance of its functions. Applying this standard, the court held that the

interests of the police department outweighed Pappas’ free speech rights in this case. The court

found that public knowledge of a New York City police officer expressing racist attitudes could

substantially undermine the mission of the police department, and the interest in maintaining an

effective police department outweighed Officer Pappas’ speech rights and any effort Pappas may

have undertaken to remain anonymous.

Judge Sotomayor dissented. 18 She applied the same precedent as the majority, but reached a

different conclusion. In her opinion, the nature of Pappas’ job and the fact that he had spoken

anonymously should have tipped the balance in Pappas’ favor despite the fact that she found his

speech to be “patently offensive, hateful, and insulting.”19 Judge Sotomayor argued that not only

must a court consider a government entity’s mission in relation to an employee’s speech, a court

must also consider the nature of that employee’s position within the government entity. She then

examined the nature of Pappas’ job and found that, though he was an officer, he was not a cop on

the beat in contact with the public or a high-ranking policy official. Because his job was not to set

policy or to be in contact with the public, she argued that his private opinions about race would

not undermine the NYPD’s ability to function, even if his attitude became public. Judge

Sotomayor also found it significant that the speech in question occurred away from work, on the

employee’s own time, and anonymously. She was swayed by the fact that the employee’s speech

was only brought to light as a result of the employer’s investigation and the employer’s decision

to publicize its results. She noted that the verdict in this case could allow government employers

to launch investigations into employees’ speech and fire them for views that had been

anonymously expressed: a result that she found to be a perversion of the reasonable belief

standard (i.e., the requirement that the government must have “reasonably believed that the

290 F.3d 143 (2d Cir. 2002).

Id. at 146 (citing Pickering v. Board of Education, 391 U.S. 563, 568 (1968)).

Id. at 154 (Sotomayor, J., dissenting).

Id.

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speech would potentially ... disrupt the government’s acitivities.”)20 Taken together, Judge

Sotomayor determined from these findings that Pappas had established a claim for retaliation.

In Singh v. City of New York,21 another retaliation suit involving the speech of a government

employee, Judge Sotomayor, writing for a unanimous panel, ruled against the employee. Singh

worked as a fire alarm inspector and was required to carry certain documents with him to and

from home each day. He voiced his opinion in a number of ways that he should be compensated

for his travel time to and from work each day. Sotomayor found that Singh’s speech did not

involve a matter of public concern, because it could not “be fairly characterized as relating to any

matter of political, social, or other concern to the community.”22 According to Judge Sotomayor,

Singh’s speech related only to internal employment policies and could not establish the first

element of a First Amendment retaliation claim (i.e., that his speech addressed a matter of public

concern).

Prisoner Speech Rights

Judge Sotomayor showed significant deference to prison officials making security decisions in

Duamutef v. Hollins.23 In that case, prison officials had placed an inmate on “mail watch” after he

received a book entitled, “Blood in the Streets: Investment Profits in a World Gone Mad.” In an

opinion authored by Judge Sotomayor, the Second Circuit held that, though the contents of the

book were harmless, due to the prisoner’s history of subversive behavior and the provocative

nature of the title, prison officials could restrict the prisoner’s mail. This case appears to grant

prison officials wide discretion to place restrictions upon prisoners’ First Amendment rights,

provided the officials have some reason to believe such restrictions would benefit prison security.

Student Speech

While Judge Sotomayor did not author any opinions dealing with the free speech rights of

students, she did sit on panels that heard two notable cases. Both cases applied Supreme Court

school speech precedents which held that student speech which is not school sponsored, offensive

or inappropriate can only be restricted if it would substantially disrupt the school function.24 In

Guiles v. Marineau,25 Judge Sotomayor joined a panel ruling in favor of the student, finding that

his anti-President Bush T-shirt had not disrupted the functioning of his school. On the other hand,

in Doninger v. Niehoff, 26 the panel, including Judge Sotomayor, ruled in favor of a school which

See Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998).

524 F.3d 361 (2d Cir. 2008).

Id. at 372 (quoting Connick v. Myers, 461 U.S. 138 (1983)).

297 F.3d 108 (2d Cir. 2002).

See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675

(1986); Tinker v. Des Moine Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

461 F.3d 320 (2d Cir. 2006). Judge Sotomayor voted to uphold a student’s right to wear a T-shirt which depicted

President George W. Bush in an unflattering light. (The shirt implied that the President had abused drugs.) The panel

found that the T-shirt was not offensive or inappropriate; therefore, according to the Supreme Court, the student may

only be prevented from wearing it if doing so caused substantial disruption to school functioning. The parties agreed

that the shirt had not caused substantial disruption to school function and therefore could not constitutionally be

censored.

527 F.3d 41 (2d Cir. 2008) (student disqualified for student government position after posting a statement on a blog

about a school event). The panel noted that the Supreme Court had not ruled definitively upon the scope of school

(continued...)

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had disciplined a student for speech she had engaged in off-campus, finding that the speech did

cause substantial disruption to school function. These cases would seem to indicate that Judge

Sotomayor has not demonstrated a clear preference between the free speech rights of students

versus a school’s discretion to discipline.

First Amendment: Religion27

In her first term, 2009-10, Justice Sotomayor will participate in the review of Salazar v. Buono, a

case appealed from the U.S. Court of Appeals for the Ninth Circuit.28 In Salazar, a visitor to the

Mojave National Preserve challenged the display of a large Latin cross that is located on land

within the Preserve. On several occasions in recent years, Congress has taken action to avoid

removal of the cross and avoid Establishment Clause claims against the display of the cross on

federal property, including authorizing a land transfer of the small area of land on which the cross

is located within the Preserve to a private entity. The case presents two questions for the Court to

consider: (1) whether a visitor to the Preserve has standing to challenge the display if he has no

objection to a public cross display but rather challenges the prohibition on other religious displays

on the land; and (2) whether the land transfer was a valid method to cure the potential

Establishment Clause violation posed by a religious display on public land.

While on the Second Circuit, Sotomayor authored few opinions related to religious freedom, and

her opinions in the area did not appear controversial.

Religious Freedom Restoration Act

In a case involving the scope of application of the Religious Freedom Restoration Act (RFRA),

Judge Sotomayor authored a dissent, arguing that the court had misapplied RFRA and violated

the principle of judicial restraint. In Hankins v. Lyght,29 a minister who was forced by his church

to retire due to age limits filed a lawsuit under the Age Discrimination in Employment Act

(ADEA). The Second Circuit held that RFRA, a statute that generally prohibits the government

from placing substantial burdens on religious exercise, amended the ADEA and remanded the

case to the district court for a hearing on the merits of the case.30 Judge Sotomayor dissented,

arguing that the court’s opinion violated principles of judicial restraint because RFRA was not

raised as an issue in the case.31 She also argued that RFRA should not be applied in a dispute

between private parties and indicated her agreement with other circuits’ adoption of a ministerial

(...continued)

authority over off-campus speech, but applied Second Circuit precedent which held that students can be disciplined for

expressive conduct occurring outside of school if it would “foreseeably create a risk of substantial disruption in the

school environment.” Because the speech at issue in the case related to a school event, contained vulgar language and

clear inaccuracies, and precipitated many e-mails and phone calls to school officials, the court found the speech rose to

the level at which it might be permissibly punished by school officials.

This portion of the report was prepared by Cynthia Brougher, Legislative Attorney.

Salazar v. Buono, 527 F.3d 758 (9th Cir. 2008), cert. granted, 129 S.Ct. 1313 (2008) (No. 08-472).

441 F.3d 96 (2d Cir. 2006).

Id.

Id. at 109 (Sotomayor, J., dissenting).

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exception to anti-discrimination laws, which allows religious organizations to select clergy

without regard to anti-discrimination requirements.32

The issue in Lyght—the freedom of religious organizations to have independence in hiring

decisions, even if those decisions would otherwise violate federal anti-discrimination laws—has

been a recurring one. Although it has been considered by some lower courts, it has not yet

reached the Supreme Court. The Department of Justice under the Bush administration applied

RFRA to protect such actions by religious organizations, asserting that anti-discrimination

requirements imposed a substantial burden on religious organizations’ exercise of religion.33 The

debate over religious organizations’ so-called hiring rights continues to be controversial,

especially in cases where an organization has received public funding for social service programs.

Prisoner Free Exercise Rights

Another recurring First Amendment issue involves instances in which the government is alleged

to have denied prisoners’ religious free exercise rights. Courts are generally deferential to the

government regarding the degree of accommodation owed to inmates, as exceptions to prison

rules and regulations are difficult to enforce while maintaining order within the prison system. 34

While on the Second Circuit, however, Judge Sotomayor wrote opinions in two prisoner free

exercise cases—Ford v. McGinnis and Salahuddin v. Mead 35—that held in favor of the prisoners.

While the facts of those cases were not particularly controversial, Sotomayor’s opinions in these

cases may provide insight into her judicial perspective on religious free exercise generally. Free

exercise cases generally require the claimant to have a sincere religious belief and require that the

action challenged impose a substantial burden on that belief. In one of the prisoner free exercise

opinions, Judge Sotomayor strongly emphasized the importance of using a subjective definition

of religion in evaluating such beliefs. Suggesting that an objective belief test “would require

courts to resolve questions that are beyond their competence,” Sotomayor wrote that the

subjective definition “examines an individual’s inward attitudes towards a particular belief

system” and that “the freedom to exercise religious beliefs cannot be made contingent on the

objective truth of such beliefs.”36

Id. at 118. The Second Circuit had not adopted the ministerial exception, but each of the eight circuit courts to

consider the ministerial exception has recognized it to some extent. Although there appears to be consensus regarding

the ministerial exception, the extent to which religious organizations may make employment decisions for non-clergy

positions remains controversial.

See Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice

and Delinquency Prevention Act, Memorandum Opinion for the General Counsel Office of Justice Programs, U.S.

Department of Justice (June 29, 2007), http://www.usdoj.gov/olc/2007/worldvision.pdf.

See Joint Statement of Senator Hatch and Senator Kennedy, 146 Cong. Rec. 16,698, 16,699 (July 27, 2000) (inserted

in general debate as Exhibit 1) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions

restrict religious liberty in egregious and unnecessary ways.”).

Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003) (holding that prison officials were not entitled to summary judgment

because they had not shown “that legitimate penological interests justified their conduct” in denying a prisoner a

religious holiday meal significant to his religious practice); Salahuddin v. Mead, 174 F.3d 271 (2d Cir. 1999) (holding

that a prisoner’s First Amendment claim could proceed because the prisoner filed the action prior to the enactment of

the Prison Litigation Reform Act, which required administrative remedies be exhausted before a lawsuit could be

brought. Thus, the exhaustion requirement did not apply to the prisoner’s claim).

Ford, 352 F.3d at 589-90 (internal quotations omitted).

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Judge Sotomayor also noted the current circuit split over whether or not the substantial burden

test should apply in prisoner free exercise cases, but did not indicate a preference for either

position. She did discuss standards by which courts measure whether a substantial burden exists,

which is a central issue in a non-prisoner case that has been submitted to the Court for possible

review. 37 Judge Sotomayor again emphasized the idea that “courts are particularly ill-suited” to

“distinguish important from unimportant religious beliefs.”38 She rejected a narrow definition of

substantial burden which has been favored by some circuits that would define substantial burden

as a burden on a practice mandated by the religion.39 Instead, Sotomayor framed the substantial

burden analysis as whether the relevant religious belief is considered central or important to the

individual’s practice of his or her religion.40

Second Amendment: Incorporation41

On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, 42

holding by a 5-4 vote that the Second Amendment protects an individual right to possess a

firearm, unconnected to service in a militia, and protects the right to use that firearm for

traditional lawful purposes such as self-defense within the home. In Heller, the Court affirmed a

lower court’s holding that declared three provisions of the District of Columbia’s Firearms

Control Regulation Act unconstitutional. 43 Although the Court did an extensive analysis of the

Second Amendment to interpret the meaning of the Second Amendment, the decision left

unanswered many questions of significant constitutional magnitude, including the standard of

scrutiny that should be applied to laws regulating the possession and use of firearms, and whether

the Second Amendment applies to the states. It is the latter issue which has been most commented

upon by lower courts in post-Heller cases.

Over 100 years ago, the Court held in United States v. Cruikshank44 (and reaffirmed in Presser v.

Illinois)45 that the Second Amendment does not act as a constraint upon state law. Both of these

decisions, however, were decided prior to the advent of modern incorporation principles. The

Court in Heller briefly commented upon the issue of incorporation stating, “[w]ith respect to

Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note

that Cruikshank also said that the First Amendment did not apply against the States and did not

See Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. petition filed, No. 08-846 (U.S. Jan. 5,

2009).

Ford, 352 F.3d at 593.

Id. (“To confine the protection of the First Amendment to only those religious practices that are mandatory would

necessarily lead us down the unnavigable road of attempting to resolve intra-faith disputes over religious law and

doctrine.”).

Id. at 593-94.

This portion of the report was prepared by (name redacted), Legislative Attorney.

128 S. Ct. 2783 (2008). For more on the Supreme Court’s decision, see CRS Report R40137, District of Columbia v.

Heller: The Supreme Court and the Second Amendment, by (name redacted).

Specifically, the three provisions ruled unconstitutional were: (1) D.C. Code § 7-.....02, which generally barred the

registration of handguns; (2) D.C. Code § 22-4504, which prohibited carrying a pistol without a license, insofar as the

provision would prevent a registrant from moving a gun from one room to another within his home; and (3) D.C. Code

§ 7-.....02, which required that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger

lock or similar device. 128 S. Ct. at 2817-19.

92 U.S. 542, 553 (1875).

116 U.S. 252 (1886).

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engage in the sort of Fourteenth Amendment inquiry required by our later cases.”46 It further

noted that subsequent Supreme Court cases had reaffirmed the holding that the Second

Amendment applies only to the federal government. 47 While these statements could be viewed as

indicating that the Court would continue with this precedent, it could also be interpreted as

indicating that the Court would support the application of modern incorporation doctrine

principles to the Second Amendment.

Since the Heller decision, three federal appellate circuits have addressed whether the Second

Amendment applies to the states. The first decision to address this issue was a three-judge per

curiam opinion by the Second Circuit in Maloney v. Rice,48 in which Judge Sotomayor was one of

the judges. In Maloney, the plaintiff sought a declaration that a New York penal law that punishes

the possession of nunchukas49 was unconstitutional. On appeal, the plaintiff argued that the state

statutory ban violates the Second Amendment because it infringes on his right to keep and bear

arms. Here, the court, citing Presser v. Illinois, held that the state law did not violate the Second

Amendment because “it is settled law ... that the Second Amendment applies only to limitations

the federal government seeks to impose on this right.”50 The court noted that, although Heller

might have questioned the continuing validity of this principle, Supreme Court precedent directs

them to follow Presser because “[w]here, as here, a Supreme Court precedent ‘has direct

application in a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the

prerogative of overruling its own decisions.’”51

After the Second Circuit decision, the U.S. Court of Appeals for the Ninth Circuit in Nordyke v.

King held the opposite and concluded that the Due Process Clause of the Fourteenth Amendment

incorporates the Second Amendment and applied it against the states and local governments. 52

The court stated that there are three doctrinal ways the Second Amendment could apply to the

states: (1) direct application; (2) incorporation by the Privileges and Immunities Clause of the

Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the Fourteenth

Amendment. The court held that it was precluded from finding incorporation through the first two

options and embarked on an analysis under the Due Process Clause by determining whether the

right under the Second Amendment is “deeply rooted in this Nation’s history and tradition.”53

After engaging in an historical analysis of the right during the Founding era, the postRevolutionary years, and the post-Civil War era, the court concluded that the Second Amendment

was incorporated because “the crucial role [of this] deeply rooted right ... compels us to recognize

that it is indeed fundamental [and] necessary to the Anglo-American conception of the ordered

liberty that we have inherited.”54

128 S. Ct. at 2813, n.23.

Id. (citing Presser v. Illinois, 116 U.S. 252, 265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894)).

554 F.3d 56 (2d Cir. 2009) (petition for writ of certiorari pending).

A “chuka stick” (or “nunchuka”) is defined as “any device designed primarily as a weapon, consisting of two or

more lengths of a rigid material joined together by a thong, rope or chain ... capable of being rotated in such a manner

as to inflict serious injury upon a person.” Id. at 58 (citing N.Y. Penal Law § 265.01(1)).

Maloney, 554 F.3d at 58.

Id. at 59 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).

Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).

Id. at 450.

Id. at 457. The Ninth Circuit, however, went on to hold that the county ordinance prohibiting possession of firearms

on county property did not violate the Second Amendment because it fits within the exception for “sensitive places”

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On June 2, 2009, the United States Court of Appeals for the Seventh Circuit issued its decision in

National Rifle Ass’n of America v. City of Chicago and Village of Oak Park.55 Here, the Seventh

Circuit followed the Second Circuit and also held that the Second Amendment does not apply to

the states. Like the Second Circuit, the Seventh Circuit stated that the Supreme Court’s decisions

in Cruikshank, Presser, and Miller still control as they have direct application in the case. The

court noted that, although Heller questioned Cruikshank, this “[did] not license inferior courts to

go their own ways.... If a court of appeals may strike off on its own, this not only undermines the

uniformity of national law but also may compel the Justices to grant certiorari before they think

the question ripe for decision.”56

Article I: Commerce Clause57

In the 2009-10 term, Judge Sotomayor will participate in the review of an upcoming case that

involves the Commerce Clause and Necessary and Proper Clause of Article I of the U.S.

Constitution.58 In the case, the Court will consider the constitutionality of a federal statute59 which

can be used to place “sexually dangerous” persons in long-term civil commitment, regardless of

whether there is a threat that such person is likely to violate federal law. Because most crimes of

sexual violence violate state and not federal law, the application of this statute could be

significantly limited by the Supreme Court.

While on the Second Circuit, Judge Sotomayor had an opportunity to address commerce clause

issues, although it does not appear that these cases are considered of particular significance. For

instance, in United States v. Giordano,60 the court held that the then-mayor of Waterbury,

Connecticut had been constitutionally convicted of making telephone calls to solicit sex with

minors, despite the fact that some of these calls had occurred entirely within Connecticut. Writing

for the court, Judge Sotomayor held that 18 U.S.C. § 2425, which prohibits the use of “any

facility or means of interstate or foreign commerce,” to transmit contact information regarding a

person under the age of 16 years with the intent of that person engaging in illegal sexual activity,

could constitutionally be applied to intrastate phone calls, because the law at issue related to an

instrumentality of commerce.

The Giordana case is within mainstream Commerce Clause analysis.61 In United States v.

Lopez,62 the Supreme Court identified three different categories of regulation in which the

(...continued)

that Heller recognized. Id. at 460.

Nat’l Rifle Ass’n v. City of Chicago, Illinois and Village of Oak Park, Illinois, Nos. 08-4241, 08-4245 & 08-4244,

slip op. at 3 (7th Cir. Jun 2, 2009) (affirming the lower courts’ decisions to dismiss suits against cities on the ground that

Heller dealt with law enacted under the authority of the national government, while Chicago and Oak Park are

subordinate bodies of a state).

Id. at 4.

This portion of the report was prepared by (name redacted), Legislative Attorney.

United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), cert. granted, 77 U.S.L.W. 3690 (June 22, 2009) (No. 081244).

18 U.S.C. § 4248 (2006).

442 F.3d 30 (2d Cir. 2004).

U.S. Const., Art. 8, cl.3. provides that “The Congress shall have Power ... To regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.”

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commerce power could be exercised: (1) regulation of channels of commerce; (2) regulation of

instrumentalities of commerce; and (3) regulation of economic activities that have an “effect” on

commerce. Using this framework, the Lopez Court struck down the Gun-Free School Zones Act

of 1990, which made it illegal for “any individual knowingly to possess a firearm at a place that

the individual knows, or has reasonable cause to believe, is a school zone.”63

The Court in Lopez reasoned that the law did not fall under the first two commerce categories, but

it also found that it had no substantial “effect” (the third category) on commercial transactions,

either by itself or in the aggregate. Further, the statute contained no requirement that interstate

commerce be affected, such as that the gun had been previously transported in interstate

commerce. Nor was the criminalization of possession of a gun near a school part of a larger

regulatory scheme that did regulate commerce.

It should be noted that the analysis of Lopez dealt principally with the “effect” category of

Commerce Clause analysis, not the “channels” or “instrumentalities” of commerce categories. At

least two federal courts of appeals have suggested, however, that where the relationship between

a “channels” or “instrumentalities” regulation and commercial activity is attenuated, that there

may also need to be some additional Commerce Clause nexus.64 This line of reasoning, however,

has not generally been used in the context of a highly regulated interstate instrumentality such as

the telephone network at issue in Giordana. Thus, Judge Sotomayor, relying on past precedent in

the circuit, did not address this alternative line of analysis.

It may be noted, however, that Judge Sotomayor did not appear inclined to focus on the

alternative line of reasoning, even when some might consider it relevant to another case decided

by the Second Circuit. In United States v. Harris, the Court considered 18 U.S.C. §

252A(a)(5)(B), which prohibits:

knowingly possess[ing] any book, magazine, periodical, film, videotape, computer disk, or

any other material that contains an image of child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce by any means, including by

computer, or that was produced using materials that have been mailed, or shipped or

transported.

Other circuits had evaluated this statute under the “effect” category, and had found that regulation

of mere possession of pornography where no commercial activity was involved was insufficient

to meet the requirements set forth by the Supreme Court.65 These cases seemed to conclude that

(...continued)

514 U.S. 549 (1995).

18 U.S.C. § 922(q)(1)A).

U.S. v. Corp, 236 F.3d 325 (6th Cir. 2001) (overturning conviction of twenty-three males convicted of possessing

pornographic pictures of 17-year old girls made from materials shipped in interstate commerce, relationship to child

pornography industry attenuated); United States v. McCoy , 323 F.3d 1114 (9th Cir. 2003) (overturning criminal

conviction based on one picture, made from materials shipped in interstate commerce, of a mother and her child with

exposed genitals, as attenuated from commercial activity). But see United States v. Gallenardo, 540 F. Supp. 2d 1172

(9th Cir. 2007) (suggesting that the Supreme Court overruled the reasoning of McCoy in Gonzales v. Raich, 545 U.S. 1

(2005)).

United States v. Morrison, 529 U.S. 598, 610-12 (four factors to be considered in determining the existence of a

“substantial effect” on commerce include whether (1) the activity at which the statute is directed is commercial or

economic in nature; (2) the statute contains an express jurisdictional element involving interstate activity that might

limit its reach; (3) Congress has made specific findings regarding the effects of the prohibited activity on interstate

(continued...)

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the fact that the materials to make the pornography had moved in “channels” of commerce (the

second category) did not preclude the application of the more rigorous requirements established

for the “effects” prong of Commerce Clause jurisprudence.

It should be noted that the Supreme Court has not adopted these changes to its Commerce Clause

doctrine as it relates to “channels” and “instrumentalities” of commerce, and Supreme Court dicta

does not appear to support such a change.66 Further, the Court’s decision in the case of Gonzales

v. Raich seems to indicate that, to the extent that a prohibition against the possession of illegal

contraband is important to a larger regulatory scheme restricting the sale or manufacture of such

contraband, it is likely to fall within the Necessary and Proper Clause.67

Judge Sotomayor’s decision in Harris, however, did not directly evaluate the alternative line of

Court of Appeals cases striking down 18 U.S.C. § 2252A(a)(5)(B).68 Instead, her opinion relied

on prior Second Circuit precedent considering a prohibition on child pornography. In United

States v. Holston,69 the Second Circuit upheld a prohibition on production (not possession) of

pornographic depictions based on Lopez and its progeny. In evaluating the relevance of Holston,

Judge Sotomayor noted that, for purposes of Commerce Clause analysis, she saw no distinction

between the possession of pornography and its production. Consequently, she found that no

further analysis was necessary and upheld the prohibition.70

Article II: Executive Power71

In recent years, the Supreme Court has considered several cases involving national security.

These cases have typically concerned the scope of executive authority in the conflict with Al

Qaeda and the Taliban, as well as the rights owed to persons detained by the United States in the

course of the conflict. Court rulings in this area have often been made by a five-justice majority.72

(...continued)

commerce; and (4) the link between the prohibited conduct and a substantial effect on interstate commerce is not

attenuated.

For instance, the Court in Lopez held that the power to regulate and protect the instrumentalities of interstate

commerce existed “even though the threat may only come from intrastate activities.” Lopez, 514 U.S. at 558.

545 U.S. at 21. U.S. Const., Art. 1, § 8, cl. 18 provides that “[The Congress shall have Power].... To make all Laws

which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by

this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Clause 18: Necessary And Proper Clause.

The opinion did note in a footnote that “... our conclusion is consistent with that of the majority of other Circuits that

have considered this question. See Holston, 343 F.3d at 88 n.2 (collecting cases).” Harris, 358 F.3d at 223 n. 2.

343 F.3d 83 (2d Cir. 2003).

“The fact that Harris challenges a provision located in a different section of the Act is a distinction without a

difference. There is simply no basis for drawing a constitutional distinction between the two sections.” Harris, 358

F.3d at 223.

This portion of the report was prepared by (name redacted), Legislative Attorney.

See Boumediene v. Bush, 128 S.Ct. 2229 (2008) (ruling 5-4 that the constitutional writ of habeas corpus extends to

non-citizens held at the U.S. Naval Station in Guantanamo Bay, Cuba); Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

(ruling 5-3 that military tribunals established by the President did not comply with the Uniform Code of Military

Justice or the law of war which the Code incorporated, including the 1949 Geneva Conventions). In the case of Hamdi

v. Rumsfeld, 542 U.S. 507 (2004), concerning the authority of the President to detain a U.S. citizen as an enemy

combatant, no opinion was joined by a majority of the justices. However, in separate opinions, five justices recognized

the President’s authority, acting pursuant to the 2001 Authorization for Use of Military Force (P.L. 107-40), to detain

(continued...)

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As a result, there has been significant interest in Judge Sotomayor’s views regarding national

security. As a Supreme Court Justice, it is possible that she will cast a deciding vote in national

security cases that come before the Supreme Court in the coming years.

An examination of Judge Sotomayor’s opinions provides little guidance as to her judicial

philosophy regarding executive authority in the realm of national security. During her tenure with

the Second Circuit, Judge Sotomayor heard only a handful of cases concerning national security

matters. As will be discussed later,73 Judge Sotomayor wrote an opinion in 2006 for a unanimous

three-judge panel in Cassidy v. Chertoff,74 holding that minimally intrusive, suspicionless

searches of passengers’ carry-on baggage and automobile trunks before boarding a commuter

ferry were justified on account of the government’s interest in deterring terrorist attacks on large

vessels involved in mass transportation. Also, as discussed previously,75 Judge Sotomayor joined

a unanimous three-judge opinion in 2008 striking down on First Amendment grounds two

provisions of the USA PATRIOT Act relating to the disclosure of the receipt of National Security

Letters.76 These cases, however, provide little indication as to how Judge Sotomayor might rule

on broader national security issues relating to executive power or the detention of suspected

terrorists.

Civil Rights: Generally77

Before her appointment to the Supreme Court, Judge Sotomayor authored a number of opinions

in the area of civil rights. Although these cases all involve claims of discrimination, such claims

are made under a wide array of federal, state, and local laws that vary significantly in the types of

bias they prohibit and the classes of individuals they protect. As a result, it is difficult to detect a

pattern in Justice Sotomayor’s civil rights rulings. Indeed, of the seven opinions she has authored

in the area of civil rights, Judge Sotomayor has ruled in favor of the party claiming discrimination

in three of them and against the party claiming discrimination in four others.

Meanwhile, Judge Sotomayor’s stance as in Ricci v. DeStafano,78 a case involving allegations of

reverse discrimination by a group of white firefighters, is somewhat more ambiguous. Although

Ricci is perhaps the most well known of the civil rights cases in which she has participated,

Justice Sotomayor did not issue a written opinion in the case. Rather, a three-judge panel of the

Second Circuit on which she was included issued a one-paragraph unsigned opinion that

summarily affirmed the district court’s decision. Nevertheless, the case is significant because the

Supreme Court recently overturned the Second Circuit’s decision.79

(...continued)

enemy belligerents captured on the battlefield in Afghanistan. Hamdi, 542 U.S. at 518 (four-justice plurality opinion of

O’Connor, J.); id. at 588-589 (Thomas, J., dissenting).

See discussion in the section on “Fourth Amendment,” infra.

471 F.3d 67 (2d Cir. 2006).

See discussion in the section on “First Amendment: Free Speech,” supra.

John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).

This portion of the report was prepared by (name redacted), Legislative Attorney.

530 F. 3d 87 (2d Cir. 2008).

Ricci v. DeStefano, 2009 U.S. LEXIS 4945 (June 29, 2009).

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In Ricci, city officials in New Haven, Connecticut declined to certify a promotional test on which

black and Hispanic firefighters had performed poorly relative to white firefighters. Several white

and Hispanic firefighters sued, claiming that the city’s actions violated, among other laws, Title

VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of

race, color, national origin, sex, or religion,80 and the Equal Protection Clause of the Fourteenth

Amendment, which prohibits a state from denying equal protection to its citizens. 81 City officials

defended their actions, arguing that Title VII prohibits employment policies or practices that have

a disparate racial impact and that the city was in fact attempting to comply with Title VII and

avoid a lawsuit when it refused to certify test results that had a disparate impact on minority

firefighters.

The district court ultimately sided with the City of New Haven, holding that the “[d]efendants’

motivation to avoid making promotions based on a test with a racially disparate impact ... does

not ... as a matter of law, constitute discriminatory intent, and therefore such evidence is

insufficient for plaintiffs to prevail on their Title VII claim.”82 Likewise, the district court rejected

the plaintiffs’ equal protection claim, ruling that the city’s attempt to remedy the disparate impact

of the test did not constitute an intent to discriminate against the non-minority firefighters and

that the rejection of the test results did not amount to an unlawful racial classification because all

applicants were treated the same with respect to the administration and invalidation of the tests.83

As noted above, a three-judge panel of the Second Circuit that included Judge Sotomayor issued a

one-paragraph affirmation of the “well-reasoned opinion” of the district court, noting that because

the city “in refusing to validate the exams, was simply trying to fulfill its obligations under Title

VII when confronted with test results that had a disproportionate racial impact, its actions were

protected.”84 Neither Judge Sotomayor nor the other judges provided additional insight into their

legal reasoning in the decision. The case has drawn considerable attention, however, not only

because of the controversial nature of the reverse discrimination allegations but also because the

Supreme Court recently reversed the Second Circuit’s decision.85

In reversing, the Court established a new standard for evaluating when avoiding disparate impact

liability excuses what otherwise would be prohibited disparate treatment under Title VII.

According to the Court, “before an employer can engage in intentional discrimination for the

asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must

have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails

to take the race-conscious, discriminatory action.”86 It is important to note that this standard was

not in effect when Judge Sotomayor ruled in the case and therefore would not have been applied

by Judge Sotomayor or her colleagues on the Second Circuit.

42 U.S.C. § 2000e-2.

U.S. Const. amend. XIV, § 1.

Ricci v. DeStefano, 554 F. Supp. 2d 142, 160 (D. Conn. 2006).

Id. at 161-62.

Ricci v. Destefano, 530 F.3d at 87 (2d Cir. 2008).

Ricci v. DeStefano, 2009 U.S. LEXIS 4945 (June 29, 2009). For a detailed analysis of the Supreme Court’s decision

in Ricci, see CRS Report R40697, Race Discrimination and the Supreme Court: A Legal Analysis of Ricci v.

DeStefano, by (name redacted).

Id. at *47.

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Although it is difficult to characterize Judge Sotomayor’s decision in Ricci, her written opinions

in other civil rights cases provide more insight into her legal reasoning. Several of these cases

have been decided at least in part in favor of the party claiming discrimination. For example, in

Raniola v. Bratton,87 the Second Circuit considered, among other claims, allegations of sex

discrimination under Title VII made by a female police officer who had been terminated from her

job. The district court had dismissed the officer’s hostile work environment and retaliation claims

as a matter of law, but Judge Sotomayor, writing for a unanimous three-judge panel, reversed the

lower court. Applying the standard that governs when parties move for judgment as a matter of

law—to review the evidence in the light most favorable to the nonmoving party—Judge

Sotomayor examined evidence of verbal abuse, disparate treatment on the basis of sex, and

workplace sabotage and concluded that “[t]he evidence which Raniola presented and the

additional witness testimony that Raniola proffered provide a sufficient basis for a reasonable jury

to conclude that Raniola was subjected to a hostile work environment because she was a woman

and that Raniola was suspended, put on probation, and then terminated in retaliation for having

complained of her treatment.”88 It is important to note that Judge Sotomayor’s ruling did not

constitute a decision on the merits of the claim. Rather, by remanding the case to the lower court

for trial, Judge Sotomayor left the ultimate decision on the plaintiff’s claims of sex discrimination

and retaliation to a jury.

Similarly, in Cruz v. Coach Stores,89 the Second Circuit reviewed a Hispanic female plaintiff’s

allegations of race and sex discrimination under various federal, state, and local laws. Although

Judge Sotomayor, writing for a unanimous three-judge panel, upheld the district court’s rejection

of virtually all of the plaintiff’s claims—including claims regarding failure to promote,

retaliation, discriminatory termination, and disparate impact—the judge did reverse the district

court’s grant of summary judgment with respect to the plaintiff’s hostile work environment claim.

Judge Sotomayor found that, unlike the other claims, the plaintiff had “established a genuine

factual dispute regarding her claim of hostile work environment harassment” on the basis of race

and sex when her allegations were viewed in the most favorable light. 90 Specifically, the plaintiff

had cited repeated evidence of racial slurs by her supervisor, as well as evidence of physical and

verbal sexual harassment. Notably, the district court appeared to consider the evidence of sexual

harassment to be too vague or isolated, but Judge Sotomayor concluded that “the physically

threatening nature of [the supervisor’s] behavior, which repeatedly ended with him backing Cruz

into the wall ... brings this case over the line separating merely offensive or boorish conduct from

actionable sexual harassment.”91 The judge also emphasized that “a jury could find that [the

supervisor’s] racial harassment exacerbated the effect of his sexually threatening behavior and

vice versa.”92 As a result, although Judge Sotomayor rejected the majority of the plaintiff’s claims

of discrimination, she remanded the case for trial for an ultimate decision on the merits of the

hostile work environment claim.

Unlike the two decisions above, which were unanimous, Judge Sotomayor’s written opinion in

the remaining case in which she sided at least in part with the party claiming discrimination was a

243 F.3d 610 (2d Cir. 2001).

Id. at 628.

202 F.3d 560 (2d Cir. 2000).

Id. at 567.

Id. at 571.

Id. at 572.

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dissenting opinion. In Gant v. Wallingford Board of Education,93 the Second Circuit examined a

case involving an elementary school student who alleged race discrimination under 42 U.S.C. §§

1981 and 1983, two civil rights statutes that provide a remedy for various types of

discrimination.94 Specifically, the plaintiff claimed that school officials intentionally

discriminated against him through deliberate indifference to racial hostility in the classroom and

through a decision to transfer him from first grade to kindergarten mid-way through the year. All

three judges on the panel agreed that there was insufficient evidence to support the student’s

claim of racial hostility, but Judge Sotomayor vigorously dissented from the majority’s ruling that

the plaintiff’s claim of a discriminatory transfer lacked merit. According to the judge, the

plaintiff, who was the only black child in his class and one of only a few black children in the

entire school, had presented evidence that his transfer was “unprecedented and contrary to the

school’s established policies” and that he had suffered disparate treatment as compared to

similarly situated white students who had received transitional assistance rather than transfers

when experiencing academic difficulties.95 As a result, Judge Sotomayor reasoned that the

plaintiff’s evidence of race discrimination was sufficient for a reasonable jury to reach a verdict in

his favor and she therefore would have remanded the case for trial on the question of the

classroom transfer.

In contrast to the cases described above, Judge Sotomayor has also authored several civil rights

opinions in which she ruled or would have ruled against the party claiming discrimination. For

example, in Williams v. R.H. Donnelly Co.,96 the Second Circuit considered a black female

employee’s claim that her employer had violated Title VII’s prohibition against race and sex

discrimination by denying her various promotions, refusing to transfer her, and failing to create a

management position for her. Writing for a unanimous three-judge panel, Judge Sotomayor

affirmed the district court’s grant of summary judgment to the employer. Specifically, the judge

determined that the plaintiff had failed to establish that she was qualified for the promotions she

sought, had failed to prove that her employer’s refusal to create a position for her was motivated

by discrimination, and had failed to demonstrate that the denial of a transfer to a lesser position

constituted an adverse employment action, all prerequisites to establishing her claims. 97

Likewise, in Norville v. Staten Island University Hospital,98 Judge Sotomayor authored a

unanimous opinion rejecting race and age discrimination claims brought under state and local

laws by an older black female nurse. With regard to the race discrimination claim, Judge

Sotomayor held that the plaintiff had failed to produce evidence sufficient to support a reasonable

inference of race discrimination, in part because she had not demonstrated that similarly situated

employees of a different race were treated differently. With regard to the age discrimination

claim, the judge held that the plaintiff had successfully established a prima facie case of

discrimination but had failed to prove that the hospital’s explanation for its actions were a pretext

for discrimination, as required by legal precedents.

195 F.3d 134 (2d Cir. 1999) (Sotomayor, J., dissenting).

For more information on 42 U.S.C. §§ 1981 and 1983, see CRS Report RL33386, Federal Civil Rights Statutes: A

Primer, by (name redacted).

195 F.3d at 151-53.

368 F.3d 123 (2d Cir. 2004).

Id. at 124-25.

196 F.3d 89 (2d Cir. 1999). The court also addressed the plaintiff’s disability discrimination claims; these claims are

discussed elsewhere in this report. See discussion in section on “Civil Rights: Individuals with Disabilities,” infra.

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In Washington v. County of Rockland,99 the Second Circuit reviewed the claims of a group of

black corrections officers who alleged, among other things, that prison officials were illegally

motivated by race in violation of 42 U.S.C. §§ 1981 and 1983 when they pursued administrative

disciplinary proceedings against the officers. The district court held that the plaintiffs failed to file

their race discrimination claims in a timely manner, and Judge Sotomayor, writing for a

unanimous three-judge panel, affirmed, ruling that the plaintiffs had not sued until after the

statute of limitations had expired.

Finally, as discussed earlier,100 in Hankins v. Lyght,101 the Second Circuit considered a claim

brought under the Age Discrimination in Employment Act (ADEA) by a minister who was forced

to retire under his church’s mandatory retirement policy. The district court dismissed the case, but

a majority of the three-judge panel reversed, ruling that the Religious Freedom Restoration Act

(RFRA), which generally bars the government from substantially burdening an individual’s free

exercise of religion, effectively amended the ADEA. The majority therefore remanded the case to

the district court for reconsideration under the RFRA standards.

However, Judge Sotomayor dissented, arguing that RFRA did not apply to the dispute. She

expressly criticized the majority for “violat[ing] a cardinal principle of judicial restraint” by

examining RFRA’s constitutionality,102 and she disagreed with several of the majority’s legal

conclusions regarding the applicability of the statute.103 In particular, Judge Sotomayor argued

that the court should not have reached the RFRA issue because it should have held that the ADEA

does not apply to employment discrimination lawsuits by clergy members or other employees

serving primarily religions roles. Instead, Judge Sotomayor would have avoided remand, deeming

it a “wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the

parties.”104 Thus, she would have affirmed the district court’s dismissal of the age discrimination

claim.

As these cases indicate, there does not appear to have been a particular pattern evident in Judge

Sotomayor’s civil rights opinions. Rather, the variety of outcomes suggests that her approach is

reasonably balanced, given that she rejects some claims while accepting others, frequently agrees

with her judicial colleagues, and rules both in favor of and against the party claiming

discrimination. As a result, her opinions seem to betray neither a particular sympathy for nor

hostility towards alleged victims of discrimination. If anything, Judge Sotomayor’s civil rights

opinions appear to have been rather workmanlike, in the sense that she appears to examine the

evidence, apply precedent, and render a verdict without straying from established legal principles,

actions that are not unusual given that many of the discrimination cases she has considered do not

raise novel legal questions.

373 F.3d 310 (2d Cir. 2004). The officers also alleged malicious prosecution and retaliation in violation of the First

Amendment.

100

See discussion in the section on “Religious Freedom Restoration Act,” supra.

101

441 F.3d 96 (2d Cir. 2006) (Sotomayor, J., dissenting).

102

Id. at 109.

103

Id. at 109-15.

104

Id. at 118.

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Civil Rights: Individuals with Disabilities105

Judge Sotomayor wrote a number of decisions relating to the civil rights of individuals with

disabilities under various federal statutes.106 Many of her cases related to the Americans with

Disabilities Act (ADA), 107 which is a broad civil rights act that provides nondiscrimination

protection for individuals with disabilities in many areas, including employment, public services,

and public accommodation and services operated by private entities. She also has addressed

discrimination issues which have arisen under Section 504 of the Rehabilitation Act,108 which

prohibits discrimination against an individual with a disability in a program or activity that

receives federal financial assistance, an executive agency of the U.S. or the Postal Service, 109 as

well as the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI) 110 which

ensures that “the rights of individuals with mental illness are protected.”111 Finally, Judge

Sotomayor decided a number of cases relating to the Individuals with Disabilities Education Act

(IDEA),112 which provides federal funding for the education of children with disabilities and

requires, as a condition for the receipt of such funds, the provision of a free appropriate public

education in the least restrictive environment.113

Judge Sotomayor’s decisions have been generally supportive of claims under these statutes, but

she has not always ruled in favor of plaintiffs with disabilities.114 In her most discussed decision

on disability issues, Bartlett v. New York State Board of Bar Examiners,115 Judge Sotomayor

appears to have anticipated the legislative discussions surrounding the enactment of the ADA

Amendments Act116 by finding that the use of self accommodations did not mean that the plaintiff

105

This portion of the report was prepared by (name redacted) and (name redacted), Legislative Attorneys.

For a more detailed discussion of Judge Sotomayor’s decisions in this area see CRS Report R40640, Civil Rights of

Individuals with Disabilities: The Opinions of Judge Sotomayor, by (name redacted) and (name redacted).

107

42 U.S.C. § 12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-921, The Americans with

Disabilities Act (ADA): Statutory Language and Recent Issues, by (name redacted).

108

29 U.S.C. § 794. See Pell v. Columbia University, 1998 U.S. Dist. LEXIS 407 (S.D.N.Y. Jan 21, 1998).

109

For a more detailed discussion of Section 504 of the Rehabilitation Act, see CRS Report RL34041, Section 504 of

the Rehabilitation Act of 1973: Prohibiting Discrimination Against Individuals with Disabilities in Programs or

Activities Receiving Federal Assistance, by (name redacted).

110

42 U.S.C. § 10801 et seq.

111

42 U.S.C. § 10801(b).

112

20 U.S.C. § 1400 et seq.

113

For a detailed discussion of IDEA as amended by the 2004 reauthorization, see CRS Report RL32913, The

Individuals with Disabilities Education Act (IDEA): Interactions with Selected Provisions of the No Child Left Behind

Act (NCLB), by (name redacted) and (name redacted), and CRS Report R40521, The Individuals with Disabilities

Education Act (IDEA): Selected Judicial Developments Following the 2004 Reauthorization, by (name redacted) and

(name redacted).

114

See, e.g., Valentine v. Standard & Poor’s, 50 F.Supp.2d 262 (S.D.N.Y. 1999), where Judge Sotomayor rejected an

ADA employment discrimination claim stating: “the ADA does not immunize disabled employees from discipline or

discharge for incidents of misconduct in the workplace.” Id. at 289.

115

2001 U.S. District LEXIS 11926 (S.D.N.Y. Aug. 15, 2001). See, e.g., Jim Dwyer, On the Bench with Fairness and

Empathy, New York Times A-21 (May 27, 2009). This decision was the final one in a long procedural odyssey. 970 F.

Supp. 1094 (S.D.N.Y. 1997) (opinion by Judge Sotomayor), reconsideration denied, 2 F. Supp. 2d 388 (S.D.N.Y.

1997) (opinion by Judge Sotomayor), aff’d in part, vacated in part, 156 F.3d 321 (2d Cir. 1998), vacated remanded by

527 U.S. 1031 (1999), aff’d in part, vacated in part, remanded in part, 226 F.3d 69 (2d Cir. 2000), on remand, 2001

U.S. District LEXIS 11926 (S.D.N.Y. Aug. 15, 2001) (opinion by Judge Sotomayor).

116

P.L. 110-325. For a more detailed discussion see CRS Report RL34691, The ADA Amendments Act: P.L. 110-325,

by (name redacted).

106

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was not an individual with a disability. In Bartlett, the plaintiff argued that she should be given

reasonable accommodations when taking the New York bar exam because of her dyslexia. In

evaluating whether the plaintiff was disabled, Judge Sotomayor observed that “[a] definition of

disability based on outcomes alone, particularly in the context of learning disabilities, would

prevent a court from finding a disability in the case of any individual like Dr. Bartlett who is

extremely bright and hardworking, and who uses alternative routes to achieve academic

success.”117 While analyzing the statutory and regulatory language, Judge Sotomayor also

examined the implications of various legal arguments on the overall intent of the ADA.

Similarly, in Connecticut Office of Protection and Advocacy for Persons with Disabilities v.

Hartford Board of Education,118 Judge Sotomayor, writing for the court, addressed whether

various federal statutes provided that the Connecticut Protection and Advocacy system should

have access to a nonresidential school for children with serious emotional disturbances in order to

investigate allegations of abuse and neglect. Finding that the system had such rights, Judge

Sotomayor examined the purposes of the law to protect the legal and human rights of individuals

with developmental disabilities and found that these purposes were not limited by the fact that a

section of the act specifically provided authority to investigate certain incidents.

Judge Sotomayor’s opinions often turned on the particular facts presented. For example, in Pell v.

Columbia University, 119 the facts surrounding the allegations of hostility to the plaintiff’s

dyslexia and the alleged discrimination regarding a foreign language requirement were closely

examined. Similarly, in two fact-specific decisions regarding the application of the ADA’s statute

of limitations, Judge Sotomayor arrived at two different rulings.120

In her decisions, Judge Sotomayor examined the statutory language at issue,121 as well as the

applicable regulations and guidance122 to inform her decisions. She also has relied upon the

reasoning of other circuits in arriving at her decisions.123 In the IDEA context, Judge Sotomayor

has been described as “representative of the mainstream of prevailing judicial outcomes in K-12

education.”124

117

A colloquy was held during the House debates on the ADA Amendments Act between Representatives Pete Stark

and George Miller on the subject of the meaning of “substantially limits” in the context of learning, reading, writing,

thinking, or speaking. The colloquy found that an individual who has performed well academically may still be

considered an individual with a disability.153 Cong. Rec. H. 8291 (September 17, 2008).

118

464 F.3d 229 (2d Cir. 2006).

119

1998 U.S. Dist. LEXIS 407 (S.D.N.Y. Jan. 21, 1998).

120

Compare Lloret v. Lockwood Greene Engineers, Inc., 1998 U.S. Dist. LEXIS 3999 (S.D.N.Y. 1998) and Brown v.

Parkchester South Condominiums, 287 F.3d 58 (2d Cir. 2002).

121

See, e.g., Protection & Advocacy for Persons with Disabilities v. Mental Health & Addiction Services, 448 F.3d 119

(2d Cir. 2006).

122

See, e.g., Bartlett v. New York State Board of Bar Examiners, 1998 U.S. Dist. LEXIS 407 (S.D.N.Y. Jan. 21, 1998);

Norville v. Staten Island University,196 F.3d 89 (2d Cir. 1999); Taylor v. Vermont Department of Education et al., 313

F.3d 768 (2d Cir. 2002).

123

Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 2000); Protection & Advocacy for Persons

Disabilities v. Mental Health & Addiction Services, 448 F.3d 119 (2d Cir. 2006).

124

Erik W. Robelen, School Rulings by Sotomayor Eyed, Education Week, June 5, 2009, http://www.edweek.org/ew/

articles/2009/06/10/33sotomayor-2.h28.html?tkn=PXZFVopNh%2BllvMFiMtnJ1S6WDo5b9VocboEX&print=1

(quoting Perry A. Zirkel, Professor of Education and Law at Lehigh University).

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Election Law125

Judge Sotomayor will participate in a major campaign finance decision involving the

constitutionality of limiting corporate campaign expenditures.126 The Court ordered this case to be

reargued on September 9, 2009, before the beginning of its regular term. In this case, the Court

will consider whether to overrule two of its prior decisions, Austin v. Michigan Chamber of

Commerce,127 upholding limits on corporate expenditures, and a portion of McConnell v. Federal

Election Commission,128 upholding the facial validity of a section of the Bipartisan Campaign

Reform Act of 2002129 prohibiting corporate treasury funds from being spent on advertisements

referring to a federal candidate and broadcast within 60 days of a general election or 30 days of a

primary.

During her tenure on the Second Circuit, Judge Sotomayor has not written extensively in the area

of election law. Therefore, it is difficult to infer a great deal about her philosophy in the area. In a

ballot access decision, she demonstrated careful consideration of the facts and a strong reliance

on past precedent. Dissenting in a case involving the Voting Rights Act and felony

disenfranchisement, her approach to statutory interpretation revealed an apparent preference for

adhering to the plain meaning of the text, while simultaneously expressing deference to Congress.

Ballot Access

In Rivera-Powell v. N.Y. City Board of Elections,130 the Second Circuit, affirming a district court

decision, rejected a claim by a New York City judicial candidate alleging that violations of state

law ─ removal of her name from the ballot based on alleged petition irregularities ─ resulted in

deprivation of rights under the Fourteenth and First Amendments.131 In rejecting these claims,

Judge Sotomayor’s opinion demonstrated reliance on the facts presented, as well as on existing

Second Circuit and Supreme Court case law, and the result was consistent with established

precedents that court intervention in ordinary election disputes is inappropriate.

In analyzing the due process claim in Rivera-Powell, Judge Sotomayor’s opinion observed that

judicial candidate Rivera-Powell received at least some type of pre-deprivation hearing, and that

the record indicated that this hearing afforded her notice and the opportunity to be heard. The

opinion further noted that analogous case law indicates that such a hearing comports with key

requirements of due process.132 Of greater importance, she determined that, subsequent to the

125

This portion of the report was prepared by (name redacted), Legislative Attorney.

Citizens United v. FEC, 129 S. Ct. 594 (2008), argument for rehearing granted, 77 U.S.L.W. 3709 (June 29, 2009)

(No. 08-205).

127

494 U. S. 652 (1990). For further discussion of this decision, see CRS Report RL30669, The Constitutionality of

Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by (name redacted).

128

540 U. S. 93 (2003). For further discussion of this decision, see CRS Report RL32245, Campaign Finance Law: A

Legal Analysis of the Supreme Court Ruling in McConnell v. FEC, by (name redacted).

129

See 2 U. S. C. § 441b.

130

470 F.3d 458 (2d Cir. 2006).

126

131

The candidate, Verena Rivera-Powell, also argued that the Board of Elections denied her equal protection of the

laws by removing her name from the ballot because of her race. This claim was found to be was found to be without

merit because the allegation of racial discrimination was conclusory. See id. at 470.

132

See id. at 466-67 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985)).

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Board’s action, Rivera-Powell was given an opportunity for complete judicial review through a

special proceeding under New York Election Law § 16-102 providing for expedited designation

proceedings. According to Judge Sotomayor’s opinion, “[t]he combination of these two

procedures satisfies due process.”133

In rejecting the First Amendment claim, Judge Sotomayor’s opinion found that it was “virtually

indistinguishable” from Rivera-Powell’s due process claim because she failed to allege additional

and independent deprivation of interests.134 Specifically, the opinion observed that Rivera-Powell

did not challenge the state law requiring a certain number of signatures for ballot access or the

law specifying requirements for objections, and that she did not contend that the Board of

Elections’ rules regarding submission of petitions or the filing of objections violated her rights in

any respect. Instead, the opinion notes, she claimed that the Board applied these limitations

illegally, burdening her right to participate in the electoral process. As a result, according to the

opinion, her First Amendment claim was inextricably linked with the question of whether the

state afforded her with procedurally adequate process.

Thus, Judge Sotomayor’s opinion concluded: “[w]hen, as here, a plaintiff challenges a Board of

Election decision not as stemming from a constitutionally or statutorily invalid law or regulation,

but rather as contravening a law or regulation whose validity the plaintiff does not contest, there

is no independent burden on First Amendment rights when the state provides adequate procedures

by which to remedy the alleged illegality.”135 Cautioning that “a contrary holding would permit

any plaintiff to obtain federal court review of even the most mundane election dispute merely by

adding a First Amendment claim to his or her due process claim,” the opinion concluded that it

“would thereby undermine our holding—one which we share with many other circuits—that

court intervention in ‘garden variety’ election disputes is inappropriate.”136

Voting Rights Act and Felony Disenfranchisement

In Hayden v. Pataki,137 an en banc Second Circuit decision, affirming the district court, rejected a

challenge under Section 2 of the Voting Rights Act (VRA)138 to a New York statute

disenfranchising currently incarcerated felons and felons on parole. Section 2 of the VRA

prohibits any voting qualification, standard, practice or procedure from being imposed by any

state in a manner resulting in a denial or abridgement of the right of any citizen to vote on

account of race or color. The court held that the VRA did not to cover felony disenfranchisement

provisions because Congress did not intend or understand the VRA to encompass this type of

statute, that such application of the VRA would alter the constitutional balance between the states

and the federal government, and that Congress did not clearly indicate that it intended the VRA to

alter the balance of government in such a manner. In addition to joining the main dissent from the

en banc court decision, Judge Sotomayor also wrote separately, maintaining that the VRA applies

to all voting qualifications, which include a state law disqualifying certain individuals from

133

Id. at 467.

Id. at 468.

135

Id. at 469.

136

Id. (citing Shannon v. Jacobowitz, 394 F.3d 90, 96 (2d Cir. 2005)).

137

449 F.3d 305 (2d Cir. 2006).

138

See 42 U.S.C. § 1973.

134

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voting. Judge Sotomayor’s dissent, while arguably demonstrating a heavy reliance on the plain

meaning of the statute, expresses deference to Congress.

In its decision, the Second Circuit characterized this case as presenting a “complex and difficult

question” that, without congressional clarification, would require Supreme Court resolution.139 It

also noted that it has considered this question in the past without resolution, resulting in an evenly

divided court.140 In further support of its characterization of the issue, it pointed out that the

Eleventh Circuit has ruled that the VRA does not encompass felony disenfranchisement, while the

Ninth Circuit has found that it does.141

Beginning its analysis with a recitation of principles of statutory interpretation, the court noted

that in interpreting a statute, the language of the statute itself must first be examined. If the

statutory terms are unambiguous, the inquiry ends, and the statute is construed according to the

plain meaning of its words. Relying on a Supreme Court case, Robinson v. Shell Oil,142 the court

acknowledged that the language of Section 2 is extremely broad, and without consideration of the

larger context, could be interpreted to include felony disenfranchisement. Finding that there were

persuasive reasons to conclude that Congress did not intend to include felony disenfranchisement

within VRA coverage, the court decided that it must look beyond the plain meaning of the statute.

In so doing, the court embarked upon a comprehensive analysis of congressional intent behind the

VRA, its amendments, and subsequent election laws, concluding that Congress did not intend or

understand the VRA to apply to felon disenfranchisement.

In sharp contrast to the majority decision, Judge Sotomayor, in a separate dissent written “to

emphasize one point,” disagreed that the issue under consideration was complex.143 According to

her dissent, “[i]t is plain to anyone reading the Voting Rights Act that it applies to all ‘voting

qualifications.’”144 Further, she maintained that the New York felony disenfranchisement law

clearly disqualifies a particular group of people from the right to vote. Therefore, Judge

Sotomayor determined that the entire analysis in this case should have been limited only to those

two propositions, and announced that it is “[t]he duty of a judge to follow the law, not to question

its plain terms.”145 Congress does not want the courts to disregard the “plain language” of any

statutory provision or to “invent exceptions” to its statutes, the judge admonished. Specifically

criticizing the evidence presented by the majority opinion in support of its conclusion, Judge

Sotomayor pointed out that the legislative history is void of even one Member of Congress

expressly stating that felony disenfranchisement laws are beyond the reach of the VRA. Her

dissent concluded that even if Congress doubted whether felony disenfranchisement laws should

be subject to Section 2 of the VRA, “Congress would prefer to make any needed changes itself,

rather than have courts do so for it.”146

139

Hayden, 449 F.3d at 310.

Id. at 313 (citing Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en banc)).

141

Id. (citing Johnson v. Gov. of State of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc), Farrakhan v. Washington,

359 F.3d 1116 (9th Cir. 2004)).

142

519 U.S. 337, 341 (1997) (stating “the plainness or ambiguity of statutory language is dictated by the language

itself, the specific context in which that language is used, and the broader context of the statute as a whole”).

143

Hayden, 449 F.3d at 367 (Sotomayor, J., dissenting).

144

Id. at 367-68.

145

Id. at 368.

146

Id.

140

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Abortion147

During her tenure with the U.S. Court of Appeals for the Second Circuit, Judge Sotomayor did

not address substantive legal questions involving abortion, such as the extent of the Constitution’s

protection of a woman’s right to choose. Judge Sotomayor, however, authored opinions that have

examined the impact of foreign funding restrictions on domestic nonprofit organizations that

promote abortion, and has discussed the effect of forced abortions and involuntary family

planning practices in the context of applications for asylum. These opinions illustrate Judge

Sotomayor’s concern for precedent and her general adherence to established legal standards.

As discussed previously,148 in Center for Reproductive Law and Policy v. Bush,149 the Second

Circuit considered an appeal brought by a nonprofit organization devoted to the promotion of

reproductive rights. The Center for Reproductive Law and Policy (“CRLP”) challenged the

federal government’s policy of conditioning the availability of U.S. government funds for foreign

nongovernmental organizations on their agreement to neither perform nor promote abortion.

CRLP argued that the so-called “Mexico City Policy” deprived the organization of its rights to

freedom of speech and association under the First Amendment by limiting its interactions and

communications with foreign nongovernmental organizations.150 CRLP maintained that the

Mexico City Policy discouraged foreign nongovernmental organizations from collaborating with

it because the organizations feared being viewed as promoting abortion.

The Second Circuit affirmed the district court’s dismissal of CRLP’s claim on the grounds that

the Mexico City Policy did not prohibit the organization from exercising its First Amendment

rights. Writing for the court, Judge Sotomayor relied heavily on Planned Parenthood Federation

of America, Inc. v. Agency for International Development,151 a 1990 decision by the Second

Circuit that also involved a First Amendment challenge to the Mexico City Policy by a domestic

nonprofit organization. Judge Sotomayor explained: “Planned Parenthood not only controls this

case conceptually; it presented the same issue. Planned Parenthood rejected the same First

Amendment challenge to the same provision ... and no intervening Supreme Court case law alters

its precedential value.”152

While the district court dismissed CRLP’s claim on the grounds that the organization lacked

standing under Article III of the Constitution, the Second Circuit reached its decision after

considering the merits of the claim and declining to resolve the standing question. After

reviewing several decisions by the Supreme Court involving the assumption of standing by a

147

This portion of the report was prepared by (name redacted), Legislative Attorney.

See discussion in section on “First Amendment: Freedom of Speech,” supra.

149

304 F.3d 183 (2d Cir. 2002).

150

The restriction on federal funds to foreign nongovernmental organizations is referred to as the “Mexico City Policy”

because it was first announced at a 1984 United Nations conference in Mexico City. Pursuant to the Mexico City

Policy, foreign nongovernmental organizations that were interested in receiving U.S. government funds had to agree to

a provision called the “standard clause” in family planning agreements and contracts with the United States Agency for

International Development. The standard clause prohibited the organizations from engaging in activities that promoted

abortion. In January 2009, President Barack Obama rescinded the Mexico City Policy. For additional information on

the Mexico City Policy, see CRS Report RL33250, International Population Assistance and Family Planning

Programs: Issues for Congress, by (name redacted).

151

915 F.2d 59 (2d Cir. 1990).

152

CRLP, 304 F.3d at 190.

148

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court in order to proceed directly to the merits of a case, the Second Circuit reasoned that where a

governmental provision is challenged as unconstitutional and another case has already entertained

and rejected the same constitutional challenge to the same provision, a court may dispose of the

case on the merits without addressing a novel question of jurisdiction.

Citing Planned Parenthood, the Second Circuit maintained that the Mexico City Policy did not

implicate any constitutional rights. Domestic nonprofit organizations remained free to use their

own funds to pursue abortion-related activities in foreign countries. The decision not to

collaborate with CRLP because of the acceptance of U.S. government funds by a foreign

nongovernmental organization had only an “incidental effect” on the activities of the CRLP that

did not rise to the level of a constitutional violation.

In Shi Liang Lin v. U.S. Dept. of Justice,153 the Second Circuit reviewed three orders issued by the

Board of Immigration Appeals (“BIA”) that denied applications for asylum submitted by three

unmarried partners of individuals who were forced to have abortions in China. The BIA’s denials

were based on its conclusion that spouses of individuals who were forced to abort a pregnancy or

submit to involuntary sterilization, but not the unmarried partners of such individuals, could

automatically qualify for asylum as refugees under federal immigration law. In reviewing the

BIA’s orders, the Second Circuit sought to determine whether § 601(a) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, which amended the definition for the term

“refugee” to include individuals who were forced to abort a pregnancy or submit to involuntary

sterilization, was ambiguous, so that the BIA’s construction of the term was entitled to deference.

The Second Circuit evaluated the BIA’s interpretation of § 601(a) in accordance with the

principles articulated by the Supreme Court in Chevron U.S.A. v. NRDC. In Chevron, the Suprme

Court established a two-part test for determining when an agency’s interpretation of a statute that

it administers is entitled to deference. First, a reviewing court will consider whether Congress has

spoken on the question at issue. If the intent of Congress is clear, the court must “give effect to

the unambiguously expressed intent of Congress.” If the statute is silent or ambiguous, however, a

court will examine whether the agency’s interpretation constitutes a permissible construction of

the statute.

The Second Circuit, however, not only held that unmarried partners of persons who were

threatened with forced abortion or involuntary sterilization were not entitled to asylum, but that

the BIA’s interpretation of § 601(a) extending such protections to spouses was also unfounded.

The court held that Congress had spoken unambiguously about who may be deemed a refugee for

purposes of asylum eligibility, and that nothing in the definition of the term “refugee” permits a

person to obtain asylum if he or she has not personally experienced persecution or a well-rounded

fear of future persecution. It explained:

We do not deny that an individual whose spouse undergoes, or is threatened with, a forced

abortion or involuntary sterilization may suffer a profound emotional loss as a partner and a

potential parent. But such a loss does not change the requirement that we must follow the

“ordinary meaning” of the language chosen by Congress, according to which an individual

does not automatically qualify for “refugee” status on account of a coercive procedure

performed on someone else.154

153

154

494 F.3d 296 (2d Cir. 2007), cert. denied, 128 S.Ct. 2472 (2008).

Id. at 309.

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Thus, the Second Circuit maintained that § 601(a) seemed to deny asylum protection to the

spouses of individuals forced to abort a pregnancy or submit to involuntary sterilization, as well

as the unmarried partners of such individuals.

In a concurring opinion, Judge Sotomayor criticized the majority opinion for its lack of judicial

restraint. In response to the majority’s conclusion that even spouses of individuals forced to abort

a pregnancy or submit to involuntary sterilization may not be automatically eligible for asylum,

Judge Sotomayor noted:

Instead of answering the limited question before us—whether the BIA’s denial of asylum to

the unmarried partners of women forced to undergo abortions or sterilization was

unreasonable—the majority has chosen to go beyond it to address an issue that is unbriefed,

unargued, and unnecessary to resolve this appeal.155

Judge Sotomayor noted that because Congress did not indicate how direct the harm or injury must

be before it can be determined that an individual suffers persecution and should be considered a

“refugee” for purposes of asylum protection, the BIA’s construction of the term should be entitled

to deference so long as it is reasonable. Judge Sotomayor maintained that the majority opinion

failed to explain why the harm of forced abortion or sterilization constituted persecution only for

the person undergoing the procedure and not for the spouse. Forced abortion, Judge Sotomayor

observed, could be devastating for the spouse, as well as the woman:

The termination of a wanted pregnancy under a coercive population control program can

only be devastating to any couple, akin, no doubt, to the killing of a child ... In the end, I fail

to understand how the majority can claim that the harm caused by a spouse’s forced abortion

or sterilization is not a personal harm to both spouses—either or both of whom can be

sterilized for violations of the population control programs—especially given the unique

biological nature of pregnancy and special reverence every civilization has accorded to childrearing and parenthood in marriage.156

In Zheng v. Gonzales,157 the Second Circuit reviewed a BIA order that dismissed an appeal by a

woman seeking asylum based on the involuntary insertion of an intrauterine device (“IUD”). The

immigration judge that first considered the petitioner’s case denied her application for asylum on

the grounds that IUD implantation did not constitute persecution and that “Congress did not

intend to include birth control methods other than abortion or forced sterilization in its definition

of persecution.... ”158 The BIA agreed with the immigration judge and noted that Zheng had not

been persecuted, in part, because she did not experience a “significant degree of pain or

restriction as a result of the procedure.”159 The BIA also acknowledged the widespread use of

IUDs as a method of birth control and observed that there is nothing so inherently egregious

about the procedure to conclude that Zheng was persecuted.

Judge Sotomayor, writing for the court, remanded the case to the BIA “so that it might articulate

its position concerning whether and under what conditions the forced insertion of an IUD

155

Id. at 327.

Id. at 330-31.

157

497 F.3d 201 (2d Cir. 2007).

158

Id. at 202.

159

Id.

156

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constitutes persecution.”160 The BIA had taken contrary positions on whether the involuntary

insertion of an IUD constituted persecution, finding in at least one other case that such insertion

was persecution. Judge Sotomayor also noted that the BIA had not discussed the issue in a

published, precedential opinion. The BIA’s failure to explain when the involuntary insertion of an

IUD would constitute persecution “deprive[d] the bench, the bar and potential asylum applicants

of guidance concerning whether and how they might approach the issue.”161

Freedom of Information Act162

During her 11 years as a federal appellate judge, Judge Sotomayor authored two opinions

involving the Freedom of Information Act (FOIA).163 Both of the FOIA decisions—Tigue v.

Department of Justice and Wood v. Federal Bureau of Investigation—upheld the withholding of

requested records by the government. Because the opinions are few and relied on relevant

Supreme Court precedent, it is difficult to draw conclusions from them regarding her overall

approach to FOIA or to related matters such as individual privacy or transparency in government.

FOIA applies to records held by agencies of the executive branch of the federal government. 164

With the exception of three special law enforcement exclusions and records already made

available for publication or inspection, all other federal agency records may be requested under

the FOIA. Agencies are required to make records not subject to a FOIA exemption available upon

request. Nine categories of information may be exempted from FOIA disclosure.165 Judge

Sotomayor’s opinions primarily involved exemptions 5 and 6—regarding inter- and intra-agency

memoranda and disclosures which would invade personal privacy, respectively. In both opinions,

Judge Sotomayor noted that the Supreme Court has mandated that FOIA’s exemptions are to be

construed narrowly.

Exemption 5

FOIA’s Exemption 5 applies to “inter-agency or intra-agency memorandums or letters which

would not be made available by law to a party other than an agency in litigation with the

agency.”166 In the two Second Circuit FOIA opinions authored by Judge Sotomayor, the court

examined the scope and application of two privileges incorporated into FOIA Exemption 5—the

160

Id. at 203-04. Although the BIA acknowledged that a number of circuit courts of appeals had suggested that

nonviolent, involuntary IUD insertions might constitute persecution, it nevertheless concluded in Zheng that

involuntary insertion did not constitute persecution.

161

Id. at 203 (“The BIA’s opinion in Zheng’s case was non-precedential and was signed by a single member of the

Board.”).

162

This portion of the report was prepared by (name redacted), Legislative Attorney.

163

Tigue v. Department of Justice, 312 F.2d 70 (2d Cir. 2002); Wood v. Federal Bureau of Investigation, 432 F.3d 78

(2d Cir. 2005). Judge Sotomayor joined a few other opinions in FOIA cases that resulted in issuance of summary orders

by the Second Circuit. She also authored an opinion addressing the Privacy Act of 1974. See Bechhoefer v. Department

of Justice, 209 F.3d 57 (2d Cir. 2000) (holding that “record” under the Privacy Act has a “broad meaning

encompassing” any personal information “about an individual that is linked to that individual through an identifying

particular”).

164

5 U.S.C. § 552.

165

5 U.S.C. § 552(b).

166

5 U.S.C. § 552(b)(5).

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deliberative process privilege and the attorney work-product privilege. The deliberative process

privilege protects advice, recommendations, and opinions from disclosure. The rationale behind

the privilege is to promote candid and frank discussion in agency deliberations, to protect against

premature disclosure of agency deliberations, and to ensure that agencies are judged only by their

final decisions.167 The attorney work-product privilege protects documents prepared by an

attorney for litigation that reflect her theory of the case or litigation strategy.

In Tigue v. Department of Justice,168 the Second Circuit held that a memorandum prepared by an

Assistant United States Attorney for a commission tasked by the IRS with conducting a review of

the IRS’s Criminal Investigations Department was an “inter-agency” communication protected by

the deliberative process privilege and thus properly withheld under FOIA Exemption 5. In

concluding that the privilege applied, Judge Sotomayor wrote that although the Commission was

not an “agency” in the traditional sense, the entity acted as a consultant to (i.e., an agent of) the

IRS. Consequently, the memorandum was properly considered to be an inter-agency

communication between the U.S. Attorney’s office and the IRS. Her opinion considered the

court’s conclusion in light of the Supreme Court’s decision in Department of the Interior v.

Klamath Water Users Protective Ass’n,169 where the Court found that correspondence between an

Indian Tribe and the Bureau of Indian Affairs was not exempt from disclosure as inter-agency or

intra-agency communication. Unlike the Klamath Tribe, which advocated its own positions in the

judicial proceedings, the Second Circuit found that the commission was more akin to the agency’s

own personnel in that it was not representing its own interest, but that of the IRS.

Because the memorandum was specifically prepared for use by the commission in assisting the

IRS in its future decision making, the court held that the document fell within the pre-decisional

prong of Exemption 5.170 It also rejected the argument that the memorandum lost its privileged

status because it was incorporated by reference in the commission’s report to the IRS. As

delineated in a Supreme Court case, NLRB v. Sears, Roebuck & Co., an agency may be required

to disclose a document otherwise entitled to protection if the agency has expressly adopted or

incorporated the document by reference in a final opinion.171 Applying Sears, Judge Sotomayor

concluded that minor references172 in the Report to the Memo were not an adoption or

incorporation in a final opinion and did not result in the government’s waiver of the deliberative

process privilege. 173 Moreover, she noted that the memorandum was not a “final opinion” because

the report was not written by IRS officials.

167

See, e.g., Michael N. Kennedy, Comment, Escaping the Fishbowl: A Proposal To Fortify The Deliberative Process

Privilege, 99 Nw. U.L. Rev. 1769, 1789 (2005); Michael Ray Harris, Standing In The Way of Judicial Review:

Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis L. J. 349 (2009).

168

312 F.3d 70 (2d Cir. 2002), cert. denied, Tigue v. DOJ, 538 U.S. 1056 (2003).

169

532 U.S. 1 (2001).

170

Tigue, 312 F.3d at 80 (citing Grand Cent. P’ship v. Cuomo, 166 F.3d 473 (2d Cir. 1989)).

171

421 U.S. 132 (1975).

172

Tigue, 312 F.3d at 74 -74. The memo is referenced in a footnote, and an excerpt of the memo is quoted in the

Commission’s Report.

173

Id. at 81 (citing Access Reports v. Dep’t of Justice, 926 F.2d 1192 (D.C. Cir. 1991); Common Cause v. IRS, 646

F.2d 656, 660 (D.C. Cir. 1981)).

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In Wood v. Federal Bureau of Investigation,174 discussed below, the Second Circuit, in an opinion

written by Judge Sotomayor, similarly held that a prosecution memorandum fell within the

attorney work-product privilege and thus was properly withheld under Exemption 5.

Exemption 6

Exemption 6 of FOIA protects from disclosure “personnel and medical files and similar files the

disclosure of which would result in a clearly unwarranted invasion of personal privacy.”175 As

delineated in a Supreme Court case, Department of State v. Washington Post Co.,176 the term

“similar files” has “a broad, rather than narrow, meaning” and applies to “detailed government

records on an individual which can be identified as applying to that individual.”177 In addition, the

determination of Exemption 6’s applicability entails a “balancing of private against public

interests” rather than an examination of “the nature of the files.”178

In Wood,179 the Second Circuit evaluated whether Exemption 6 protected documents containing

the names of government investigators in an internal FBI probe. Writing for the court, Judge

Sotomayor employed a two-part test, first determining whether the information is contained in a

file “similar” to a medical or personnel file, 180 and then balancing the public’s need for the

information against the individual’s privacy interest to determine whether the disclosure of names

would constitute a clearly unwarranted invasion of personal privacy.181 With regard to whether the

files at issue were “similar” to medical or personnel files, the court found that personnel and

medical files contain information about a person, and that administrative investigative files were

also likely to contain information about the subject of the investigation and third parties such as

witnesses.182 The court held that any personal information, not limited to information about the

subject of an investigation, contained in files similar to personnel or medical files is subject to the

balancing analysis under Exemption 6. It then balanced the investigators “broad” privacy interest

against possible harassment and embarrassment against the public’s interest in information that

would shed light on an agency’s performance of its duties. Judge Sotomayor’s opinion concluded

that the public’s interest in knowing the identity of the investigators was minimal at best because

it would add little to the public’s understanding of how the agency performed its duties. Thus, it

was insufficient to overcome the employees’ substantial interest in preventing public disclosure of

their names.

174

Wood v. Federal Bureau of Investigation, 432 F. 3d 78 (2d Cir. 2005).

5 U.S.C. § 552(b)(6).

176

456 U.S. 595 (1982).

177

Id. at 599, 602.

178

Id. at 600.

179

432 F. 3d 78 (2d Cir. 2005).

180

Id. at 86 (citing Dep’t of State v. Washington Post Co., 456 U.S. 595, 601 (1982)).

181

Id. (citing Dep’t of State v. Ray, 502 U.S. 164, 175 (1991)).

182

Id. (citing Washington Post Co., 456 U.S. at 600-01).

175

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Criminal Law183

The Court has granted certiorari in two Florida cases to examine whether, in some circumstances,

sentencing a juvenile to life imprisonment without parole violates the Eighth Amendment

prohibition against cruel and unusual punishment.184 It will also consider whether the Sixth

Amendment right to counsel requires an attorney to advise a defendant regarding the possibility

that deportation may be a consequence of a criminal conviction, 185 and whether the Sixth

Amendment confrontation clause guarantees a criminal defendant the right to confront the

preparer of a forensic laboratory analysis certificate that was introduced as evidence in his trial.186

The confrontation clause case appears to present a question very similar, if not identical, to one

the Court addressed in a recent 5-4 decision, Melendez-Diaz v. Massachusetts.187 In MelendezDiaz, a five-justice majority, including Justice Souter, held that the confrontation clause required

the prosecution to make a preparer of forensic analysis available for questioning at trial. If Judge

Sotomayor were to vote differently than did Justice Souter in the upcoming case on that issue, her

participation could contribute to an overruling or narrowing of the recent Melendez-Diaz

decision.

Also in its 2009 term, the Court will examine whether the Fifth Amendment, as interpreted in

Miranda v. Arizona,188 requires police officers to have expressly advised a defendant of his right

to the presence of counsel during questioning, 189 and whether that amendment precludes police

officers from questioning a defendant after he has requested the presence of an attorney despite a

break in the chain of custody of the defendant or a substantial lapse in time. 190 In addition, the

Court will review several decisions involving the constitutional right to habeas corpus.191

183

This portion of the report was prepared by (name redacted) and (name redacted), Legislative Attorneys.

Graham v. State, 982 So. 2d 43 (Fla. Dist. Ct. App. 1st Dist. 2008), cert. granted sub nom. Graham v. Florida, 77

U.S.L.W. 3609 (May 4, 2009) (No. 08-7412); Sullivan v. State, 987 So.2d 83 (Fla. Dist. Ct. App. 1st Dist. 2008), cert.

granted Sullivan v. Florida, 77 U.S.L.W. 3609 (May 4, 2009) (No. 08-7621).

185

Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted sub nom. Padilla v. Kentucky, 77 U.S.L.W.

3467 (Feb. 23, 2009) (No. 08-651).

186

Magruder v. Commonwealth, 275 Va. 283 (2008), cert. granted sub nom. Briscoe v. Virginia, 77 U.S.L.W. 3709

(June 29, 2009) (No. 07-11191). Although a Virginia statute, Va. Code Ann. § 19.2-187.1, provided procedures

whereby the preparer might be questioned if called as a witness, the defendant in the case had failed to request a

subpoena for the preparer; thus, the trial court found that the defendant had waived his confrontation clause right. On

appeal, the Virginia Supreme Court, noted that “[w]hile ‘[m]ost ... Sixth Amendment rights arise automatically on the

initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case,’

‘the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.’” Id. at 299 (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988);

Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). It upheld the trial court’s ruling and held that the state statute did

not violate the Sixth Amendment.

187

No. 07-591, 2009 U.S. LEXIS 4734 (June 25, 2009).

188

Miranda v. Arizona, 384 U.S. 436 (1966).

189

State v. Powell, 998 So.2d 531 (Fla. 2008), cert. granted sub nom. Florida v. Powell, 77 U.S.L.W. 3690 (June 22,

2009) (No. 08-1175). Police officers in the case had advised the defendant of his right to consult a lawyer prior to

questioning but had not expressly advised him of his right to the attorney’s presence during questioning. On appeal, the

Florida Supreme Court held that the warnings were not sufficient to satisfy the Fifth Amendment.

190

Shatzer v. State, 405 Md. 585 (Md. 2008), cert. granted sub nom. Maryland v. Shatzer, 77 U.S.L.W. 3430 (Jan. 26,

2009) (No. 08-680).

191

See, e.g., Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008), cert. granted sub nom. McDaniel v. Brown, 77 U.S.L.W.

3430 (Jan. 26, 2009) (No. 08-559); Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008), cert. granted, 77 U.S.L.W. 3632

(May 18, 2009) (No. 08-9156). In Brown, the Court will consider the applicable standard for evaluation of DNA

(continued...)

184

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The Court has also granted certiorari to interpret several federal criminal statutes during its 2009

term. For example, in two cases in which it has granted certiorari, the Court will consider the

“honest services” provision in the federal mail fraud statute, which imposes criminal liability for

fraudulent schemes to withhold material information and deprive the public of its right to the

defendant’s honest services. 192 It will also hear a case involving the federal crime of racketeering

influenced and corrupted organizations (RICO) statute.193

Judge Sotomayor has ruled in numerous criminal cases as an appellate judge. Based to some

extent on her opinions in Fourth Amendment cases—in particular on two opinions she has written

in cases involving the typical remedy for Fourth Amendment violations, the so-called

“exclusionary rule”—some commentators have speculated that Judge Sotomayor would be more

likely to rule in favor of police or prosecutors in criminal cases than was Justice Souter.194

However, it is difficult to glean any strong evidence of such an inclination from her appellate

court opinions. She has authored several opinions in the criminal law area, and joined others, in

which the Second Circuit ruled in favor of the police or government. On the other hand, she has

authored opinions on behalf of the court that reach the opposite outcome. In addition, in cases in

which Judge Sotomayor has split with her panel colleagues to write a dissenting opinion, her

arguments have generally favored defendants. More than any other unifying characteristic, her

appellate opinions in the criminal justice area, as in many other areas, demonstrate her strong

adherence to precedent.

Fourth Amendment

The Fourth Amendment to the U.S. Constitution provides a right “of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.”195 The

reasonableness inquiry is prompted when government either conducts a “search” by invading a

person’s “reasonable expectation of privacy” or conducts a “seizure” by “meaningfully

interfering” with a person’s possessory interest or freedom of movement. 196 As a general rule,

reasonableness requires “probable cause” and either a warrant or a warrant exception. 197

However, in some circumstances, for example when the government demonstrates a “special

need,” courts conduct a “reasonableness balancing” inquiry rather than requiring probable cause.

(...continued)

evidence in habeas cases. In Wood, it will consider a habeas claim brought on the basis of ineffective assistance of

counsel.

192

United States v. Weyhrauch, 548 F.3d 1237 (9th Cir. 2008), cert. granted 77 U.S.L.W. 3708 (June 29, 2009) (No.

08-1196); United States v. Black, 530 F.3d 596 (7th Cir. 2008), cert. granted 77 U.S.L.W. 3632 (May 18, 2009) (No.

08-876). In Weyhrauch, the Court will address whether the non-disclosure of material information requires violation of

a disclosure duty imposed by state law. In Black, it will consider whether the honest services provision applies to a

private individual whose alleged scheme to defraud does not involve economic harm.

193

City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425 (2d Cir. 2008), cert. granted sub nom. Hemi Group v.

City of New York, 77 U.S.L.W. 3609 (May 4, 2009) (No. 08-969).

194

See, e.g., Jess Bravin and Nathan Koppel, Nominee’s Criminal Rulings Tilt to Right of Souter, Wall St. J. June 5,

2009 at A3.

195

U.S. Const. amend. IV.

196

See Kyllo v. United States, 533 U.S. 27, 34 (2001); United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J.,

concurring in result).

197

See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

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During her tenure on the Second Circuit, Judge Sotomayor wrote several opinions in cases with

Fourth Amendment implications. Most, if not all, of these concern the reasonableness of a search

or seizure, but some address additional questions such as whether evidence collected pursuant to

a Fourth Amendment violation must be excluded at trial.

Reasonableness of a Search or Seizure

In United States v. Gori198 and N.G. ex rel. S.C. v. Connecticut,199 Judge Sotomayor wrote

dissenting opinions in which she argued for a stronger protection from unreasonable searches and

seizures than the majority opinion allowed. In Gori, police officers suspected, based on an

informant’s tips, that an apartment might contain evidence of drugs. Relying on that evidence,

they stood on either side of a food delivery person, who happened to be making a delivery to the

apartment, as she knocked on the apartment door. After the door opened, the officers announced

their presence and ordered all of the apartment’s occupants into the hallway. The officers

questioned the occupants, obtained signatures on consent forms, and completed a full search of

the apartment. At issue on appeal of the subsequent conviction was whether a Supreme Court

case, Payton v. New York, 200 applied. Stating that “the Fourth Amendment has drawn a firm line at

the entrance to the house,” Payton established a heightened standard that police officer’s must

meet in order to enter a home. 201 Applying another Supreme Court case, Santana v. United

States,202 the majority held that because the apartment occupants had opened the door and

exposed the apartment interior to the officers, they lacked a reasonable expectation of privacy and

thus the Fourth Amendment warrant requirement, and the heightened Payton standard, did not

apply. In dissent, Judge Sotomayor argued that the majority had misapplied Santana and that the

heightened protection should have applied under Payton. In having argued for special protection

for the home, Judge Sotomayor stated that “I agree [with Scalia’s view, articulated in Arizona v.

Hicks, 480 U.S. 321, 329 (1987)] that the Fourth Amendment’s protection of the home is worth ...

preservation.”203

In N.G. ex rel. S.C.,204 a case involving strip searches of adolescent girls in a juvenile detention

facility, Judge Sotomayor dissented from the part of the majority opinion which had upheld the

strip searches. In upholding the searches, the majority had relied on the “special needs” doctrine,

under which a search or seizure is subject to a balancing test rather than the ordinary probable

cause or warrant requirements. The doctrine applies when the government has articulated a

“special nee[d], beyond the normal need for law enforcement, [made] the warrant and probable

cause requirements impracticable.”205 Although she agreed that the government had a special

need to search girls in the facility, she disagreed that the strip search method, in particular, bore a

sufficiently “close and substantial” relationship to the government’s special need.206

198

230 F.3d 44 (2d Cir. 2000).

382 F.3d 225 (2d Cir. 2004).

200

445 U.S. 573 (1980).

201

Id. at 589-90.

202

427 U.S. 38 (1976).

203

Id. at 65.

204

382 F.3d 225 (2d Cir. 2004) (Sotomayor, J., concurring in part and dissenting in part).

199

205

Griffin v. Wisconsin, 483 U.S. 868, 873 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun,

J., concurring)).

206

N.G. ex rel. S.C, 382 F.3d at 239 (Sotomayor, J., dissenting).

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In contrast, Judge Sotomayor authored opinions in several cases in which the Second Circuit held

that a government search was reasonable and thus did not violate the Fourth Amendment. In

Leventhal v. Knapek,207 the New York State Department of Transportation had searched one of its

employee’s computers as part of an investigation of employee misconduct. Writing for the court,

Judge Sotomayor noted that governments must abide by the Fourth Amendment prohibition

against unreasonable searches and seizures even in their role as employers.208 However, she

applied a Supreme Court precedent, O’Connor v. Ortega,209 to hold that although the employee

had a reasonable expectation of privacy in the contents of his office computer, the government’s

search was not unreasonable because it was both “‘justified at its inception’ and of appropriate

scope,” specifically because the Department had various indications that the employee had been

misusing his work computer. 210

In Cassidy v. Chertoff, 211 also discussed previously, 212 Judge Sotomayor demonstrated a

deference to government in the national security context. Pursuant to legislation enacted after the

9/11 terrorist attacks,213 the U.S. Coast Guard required specified vessels to undertake various

security measures, including, in some cases, the screening of passengers’ vehicles or bags. The

plaintiffs in Cassidy were two Vermont residents who regularly commuted on a ferry which had

imposed searches on passengers’ belongings pursuant to the statute. Despite alleging that they

feared repercussions if they did not acquiesce in the searches, the plaintiffs sued, seeking a

declaratory judgment and an injunction preventing the searches. Writing for the court, Judge

Sotomayor applied the special needs doctrine. After a thorough discussion of the various interests

involved, she concluded that the government’s interest in the searches outweighed the intrusion

on the plaintiffs’ privacy.

Finally, in an opinion written by Sotomayor in a 2007 case, United States v. Howard, the Second

Circuit held that the warrantless search of a defendant’s automobile was not a Fourth Amendment

violation because the police had established probable cause to support the search based on six

phone calls in which cocaine was discussed.214

Exclusionary Rule

The “exclusionary rule” is a remedy for violations of the Fourth Amendment prohibition against

unreasonable searches and seizures. To deter Fourth Amendment violations, the rule requires

courts to forbid the prosecution’s use of evidence obtained as a result of an unconstitutional

search or seizure.215

207

266 F.3d 64 (2d Cir. 2001).

Id. at 73 (citing Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 65 (1989)).

209

480 U.S. 709 (1987).

210

Id. at 75 (citing O’Connor, 480 U.S. at 726).

211

471 F.3d 67 (2d Cir. 2006).

212

See discussion in section on “Article II: Executive Power,” supra.

213

Maritime Transportation Security Act of 2002, 46 U.S.C. §§ 70101-70119.

214

489 F.3d 484 (2d Cir. 2007).

215

Although it was not termed the “exclusionary rule” until later, the Supreme Court first clearly articulated a remedy

of excluding evidence as a result of Fourth Amendment violations in Weeks v. United States. 232 U.S. 383, 393 (1914)

(“If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an

offense, the protection of the Fourth Amendment ... is of no value”). Although the Weeks holding applied only to

evidence obtained by federal officers, the Court later applied the rule to the states in Mapp v. Ohio. 367 U.S. 643, 655

(continued...)

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In United States v. Leon,216 the Supreme Court introduced what has come to be known as the

good-faith exception to the exclusionary rule. Under Leon, the exclusionary rule does not apply

when police officers act with “objectively reasonable reliance” on a search warrant later found to

be invalid. Subsequently, in Arizona v. Evans,217 the Supreme Court applied Leon to evidence

obtained after an arrest based on a facially valid warrant that the clerk of the court had neglected

to show had been quashed seventeen days earlier.

Judge Sotomayor authored two opinions—United States v. Santa and United States v. Falso—as

an appellate judge which some commentators have characterized as having extended precedents

that narrowed the scope of the exclusionary rule by expanding the Leon good-faith exception. 218

In both cases, she applied Supreme Court precedent to hold that the rule was inapplicable, thus

allowing the convictions to stand. However, although the outcomes favored the prosecutors in

both cases, Judge Sotomayor’s opinions relied on, but arguably did not extend, relevant Supreme

Court precedents.219

Judge Sotomayor applied the good-faith exception in United States v. Falso.220 In Falso, FBI

officers obtained a warrant to search David Falso’s home after connecting a login name used to

access a website containing child pornography with Falso’s Yahoo! account. Writing for the court,

Judge Sotomayor held, first, that the search warrant had been granted without sufficient probable

cause. Nonetheless, she then applied the good-faith exception to the exclusionary rule to allow the

prosecution’s use of the evidence. The two other Second Circuit judges sitting on the panel each

joined with one part of this opinion. In the first part of the opinion, Judge Sotomayor

distinguished this case from a prior Second Circuit case, United States v. Martin,221 in which the

court had held that a defendant’s membership in a website containing child pornography was

sufficient to establish probable cause to justify a warrant for a search. Unlike in Martin, Judge

Sotomayor wrote, there was no solid evidence that Falso had even accessed the site, much less

that he had actually downloaded pornographic images. Thus, the court held that the warrant was

invalid and the search constituted a Fourth Amendment violation. The second part of the opinion

held that the evidence found during the search could nonetheless be used to convict Falso because

the officers who obtained the warrant had acted in good faith. Applying Leon, Judge Sotomayor

noted that the officers had not misled the issuing court, nor had the affidavit supporting the

warrant been obviously deficient.

(...continued)

(1961).

216

468 U.S. 897, 922 (1984).

217

514 U.S. 1 (1995).

218

See id.

219

In an opinion in another case, United States v. Estrada, 430 F.3d 606 (2d Cir. 2005), Judge Sotomayor also found an

exception to the exclusionary rule in the Fifth Amendment context. As in Santa and Falso in the Fourth Amendment

context, she applied a Supreme Court precedent with facts similar to those in Estrada, holding that because the

defendant had stated that he had a gun in his pocket, the “public safety” exception to the Fifth Amendment

exclusionary rule, which typically applies to exclude evidence collected as a result of questioning that was not preceded

by Miranda warnings, was applicable.

220

544 F.3d 110 (2d Cir. 2008).

221

426 F.3d 68 (2d Cir. 2005).

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In an earlier case, United States v. Santa,222 a police officer from Spring Valley, New York,

arrested Anthony Santa, a man whom the officer recognized as having “been the subject of

previous criminal investigations.”223 The officer made the arrest after learning from a dispatcher

that an outstanding arrest warrant from a neighboring town applied to Santa. In a search of

Santa’s person subsequent to the arrest, the officer found plastic bags filled with crack cocaine.

However, the arrest warrant upon which the officer had relied was supposed to have been

vacated; the issuing court had mistakenly misdirected its request to vacate to the wrong police

department. Thus, when he made the arrest, the officer had neither a valid arrest warrant nor

probable cause to suspect that Santa had committed a crime. In such circumstances, the Fourth

Amendment violation is apparent; the remaining question is whether the exclusionary rule should

bar the prosecution’s use of the evidence. Writing for the court in Santa, Judge Sotomayor held

that under Evans, the exclusionary rule could not bar the evidence seized.

Commentators have drawn analogies between Judge Sotomayor’s rationale in Santa and a 2009

Supreme Court case, United States v. Herring,224 in which the Supreme Court’s five more

conservative justices joined to narrow the exclusionary rule. However, the analogies are arguably

misplaced. Although Herring involved factual circumstances that are remarkably similar to those

in Santa in many respects, a key distinction—namely that the record error in Herring was

committed by police officers themselves rather than by a court employee—distinguishes the two

cases. In other words, whereas the holding in Santa represents an application of the good-faith

exception as interpreted in Evans, Herring was an extension of that exception. To support the

court’s holding in Santa, Judge Sotomayor’s opinion emphasizes the distinction between judicial

errors, which were at issue in Evans and Santa, and police errors. This emphasis mirrors points

made by Justice Breyer in his dissenting opinion in Herring. Both Judge Sotomayor and Justice

Breyer’s opinions highlighted the substantive distinction between errors made by judicial branch

personnel and errors made by police, noting three specific distinctions that the Evans court had

emphasized, namely: (1) the exclusionary rule historically aims to deter police, rather than

judicial, misconduct; (2) no evidence suggests that court employees are “inclined to subvert the

Fourth Amendment”; and (3) because judicial officers have no stake in the outcome of particular

criminal investigations, “there [is] ‘no basis for believing that application of the exclusionary rule

... [would] have a significant effect on court employees.’”225

Based on these few cases, it is difficult to determine what approach Judge Sotomayor will take to

the Fourth Amendment exclusionary rule as a Supreme Court justice. On one hand, she appears to

apply exclusionary rule precedents that are perceived as conservative without attempting to

narrow the precedents. On the other hand, this respect for precedent appears to be in keeping with

her more general respect for stare decisis.

Police Immunity

While serving on the Second Circuit, Judge Sotomayor authored opinions in several police

immunity cases. A number of these arose in the context of suits for civil damages brought by

222

180 F.3d 20, 24 (2d Cir. 1999).

Id. at 24.

224

129 S. Ct. 1692 (2009).

225

Santa, 180 F.3d at 26; Herring, Slip op. at 1 (Breyer, J., dissenting) (both quoting Evans, 514 U.S. at 15).

223

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plaintiffs who alleged that police officers violated the Fourth Amendment or another

constitutional guarantee and should be liable for civil damages under 42 U.S.C. § 1983.226

Notwithstanding the cause of action provided by § 1983, police officers are immune from liability

in civil suits if “their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.”227 The most difficult police immunity cases

turn on an analysis of whether a given constitutional guarantee is “clearly established.”

The Second Circuit held that police officers were entitled to immunity in several cases in which

Judge Sotomayor authored the opinion for a unanimous Second Circuit panel. In Smith v.

Edwards,228 John Smith brought a § 1983 claim for false arrest after he was arrested in connection

with allegations that he had sexually abused his three-year-old daughter. Although the police

officer had arrested Smith pursuant to a warrant, Smith claimed that the warrant was invalid due

to a “material omission” because in the affidavit to the issuing magistrate, the officer had

included incriminating allegations of sexual abuse but neglected to include relevant proceedings,

including the denial of a protective order, in a lower court. Writing for the court, Judge

Sotomayor applied a Second Circuit precedent under which such an omission is material if

inclusion of the omitted material would have undermined probable cause. 229 She examined the

relevant lower court proceedings, which appeared to raise some questions regarding statements

made by Smith’s wife and daughter, but did not come to any ultimate conclusion regarding the

legitimacy of the allegations. Given these facts, Judge Sotomayor concluded that Smith’s § 1983

claim must fail because “nothing in the [omitted] proceedings would have negated probable

cause.”230

In another case evaluating probable cause in light of a § 1983 claim, Anthony v. City of New

York,231 police responded to a 911 call in which a caller, identified by the 911 operator as being

potentially emotionally disturbed, had stated that her husband beat her and had a knife and a gun.

The manner in which the officers gained entry is unclear, but once inside the home, they found

Myra Anthony, a woman with Downs syndrome, home alone. The officers transported Anthony to

a county hospital, where she stayed overnight and was subject to psychological evaluations. After

the incident, Anthony and her guardian, Magdalene Wright, sued the officers under § 1983,

claiming damages arising from Fourth Amendment violations. Writing for the court, Judge

Sotomayor first noted Second Circuit and other circuits’ precedent under which “[a] warrantless

seizure for the purpose of involuntary hospitalization ‘may be made only upon probable case, that

is, only if there are reasonable grounds for believing that the person seized’ is dangerous to

herself or to others.”232 Applying that standard to the facts in the case, the court held that the

officers were entitled to qualified immunity because the emotional 911 call prompting the

officers’ entry appeared to provide reasonable grounds to believe that Anthony was dangerous.

226

Under § 1983, state and local employees may be held civilly liable for depriving a person of “any rights, privileges,

or immunities secured by the Constitution and laws.”

227

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

228

175 F.3d 99 (2d Cir. 1999).

229

Id. at 105 (citing Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992)).

230

Id. at 106.

231

339 F.3d 129 (2d Cir. 2003).

232

Id. at 137 (quoting Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993)).

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In Rolon v. Henneman, the court considered whether a police officer who testified in a

discretionary hearing has absolute immunity from civil suit for actions related to the testimony. 233

The plaintiff argued that the officer’s testimony had caused humiliation and economic loss.

Writing for the court, Judge Sotomayor noted that the alleged injuries did not constitute a

cognizable deprivation of liberty or property. Although the opinion focused on fact-specific

circumstances (for example, the court found that the plaintiff had not demonstrated that he had

lost overtime work as a result of the testimony), the holding extends a Supreme Court case,

Briscoe v. LaHue,234 in which the Court had held that officers are entitled to absolute immunity

for actions arising from mandatory testimony.

In a few other cases, Judge Sotomayor authored opinions in which the Second Circuit denied

immunity for at least some actions. In Walczyk v. Rio,235 Thomas Walczyk and several of his

family members sued the members of the police department in their Connecticut town, claiming

civil damages arising from the police officers’ alleged Fourth Amendment violations in

connection with the search of Walczyk’s home, his mother’s home and Walczyk’s arrest. The

Second Circuit held that the police were entitled to immunity for damages arising from the search

of Walcyzk’s home and for his arrest, both of which it found to be supported by probable cause

and therefore not prohibited by the Fourth Amendment. However, it held that the police were not

entitled to qualified immunity with respect to the search of Walczyk’s mother’s home because the

police had based the search on “stale information.”236 In a concurring opinion, Judge Sotomayor

agreed with the outcome, but disagreed with some elements of the court’s reasoning. Namely, in

analyzing the immunity question, the majority opinion had first analyzed whether the Fourth

Amendment right at issue was “clearly established” and next examined whether a “reasonable

officer” would be aware of the right. Judge Sotomayor expressed concern that this two-step

approach had “bifurcate[d] the ‘clearly established’ inquiry” in contravention of settled Supreme

Court precedent.237 Her concerns appeared to be aimed at adhering to precedent and at not

complicating the test for future qualified immunity cases. In addition, she urged the court to resist

widening the established limits of qualified immunity, emphasizing that the court’s approach

might give police officers “a second bite at the immunity the apple.”238

Judge Sotomayor’s police immunity opinion that is least favorable to police officers is Papineau

v. Parmley, a case involving a break up of a protest demonstration by members of the Onondaga

Nation.239 The demonstration was prompted by an agreement between New York State and the

Onondaga Nation to impose a state tax on some tobacco purchases made on the Onondaga

reservation. The demonstration proceeded with the knowledge of county police and without

incident for several days, but state police officers became involved when some protesters entered

an interstate highway. Although the protesters left the highway peacefully at the request of one of

the demonstration leaders, state police marched toward the place where the protesters had

gathered, about 70 feet from the highway. The officers then received a “go ahead” order from a

233

517 F.3d 140 (2d Cir. 2008).

460 U.S. 325 (1983).

235

496 F.3d 139 (2d Cir. 2007).

236

Id. at 144.

237

Id. at 167.

238

Id. at 169.

234

239

465 F.3d 46 (2d Cir. 2006). In addition to the Fourth Amendment issues discussed here, plaintiffs in Papineau also

claimed damages for violations of their First Amendment rights. See discussion in the section on “First Amendment:

Free Speech,” supra..

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police major who was located out of view of the protesters. The state police then “charged into

the demonstration and began arresting protesters allegedly indiscriminately, assaulting

[protesters], beating them with their riot batons, dragging them by their hair and kicking them.”240

The demonstrators brought a § 1983 claim, alleging violations of their First and Fourth

Amendment rights. Regarding the Fourth Amendment claim, Judge Sotomayor’s opinion noted

that as delineated in a Supreme Court case, Grahm v. Connor,241 police force is excessive if it is

unreasonable given all of the circumstances. Given the circumstances in this case, including the

peaceful nature of many demonstrators, the court concluded that, as a matter of law, the police

officers would not be entitled to qualified immunity.

Sixth Amendment and Habeas Corpus

During her tenure on the appellate bench, Judge Sotomayor authored opinions in several cases

involving writs of habeas corpus. Her habeas opinions involve various aspects of Sixth

Amendment law such as jury selection, the right to counsel and ineffective assistance of counsel.

Few of these decisions have garnered a dissent. As in other areas, Judge Sotomayor relied on

Supreme Court and Second Circuit precedent in opinions addressing habeas and the Sixth

Amendment. In addition, the opinions demonstrate a recognition of the Sixth Amendment’s

import and a willingness to provide defendants with a right to appeal.

Many habeas cases require federal courts to evaluate decisions made by state courts. However,

under the “deference” provision of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 242 federal courts may not overturn state judgments by granting a habeas writ merely

because they would have decided the case differently from the state court. They may overturn

only state decisions contrary to Supreme Court precedent or applied unreasonably. 243 Within the

broad zone in which reasonable judges may differ, state court decisions typically stand. In

applying these general habeas parameters, the Second Circuit has deferred to state court decisions

in some, but not all, instances. 244

Jury Selection

In a 2001 case, Galarza v. Keane,245 the principal issue involved application of the Supreme Court

precedent in Batson v. Kentucky246 regarding peremptory challenges to potential jurors during the

jury selection process. In Galarza, the prosecutors peremptorily struck a number of Hispanic

jurors, leading the defendant’s counsel to raise a Batson challenge. As required by Batson, the

trial judge required the prosecution to articulate a non-racial basis for the strikes. The defense

240

Id. at 53.

490 U.S. 386 (1989).

242

28 U.S.C. § 2254(d).

243

28 U.S.C. § 2254(d)(1); See also, Williams v. Taylor, 529 U.S. 362, 405-406 (2000) (stating that a state court’s

decision is “contrary to” clearly established law if it “applies a rule that contradicts the governing law set forth in our

cases” or if it “confronts a set of facts that are materially distinguishable from a decision of this Court and nevertheless

arrives at a result different from our precedent”).

244

It is worth noting that no capital case from Vermont, Connecticut or New York has reached the Second Circuit

during normal review. Thus, Judge Sotomayor’s opinions have involved non-capital habeas cases.

245

252 F.3d 630 (2001).

246

476 U.S. 79 (1986) (holding that prosecutors may not use race as a factor in peremptory challenges).

241

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counsel objected to the explanations as pretextual. While the judge specifically declared that he

credited the prosecution’s explanations with respect to some of the prospective jurors, the court

made no clear finding with respect to the others. However, the trial judge permitted all of the

strikes to stand. At that time, the defense counsel did not object to the court’s failure to

specifically declare whether he credited the prosecution’s explanations with respect to some of

the prospective jurors. After the jury found Galarza guilty of numerous narcotic offenses, he

appealed his conviction on equal protection grounds, alleging that the prosecutor exercised her

peremptory challenges in a racially discriminatory manner.

Judge Sotomayor, writing for the majority,247 found that the trial court failed to fulfill its

obligations under Batson as to some of the prospective jurors. Although the majority deferred to

the trial court’s findings regarding two of the prospective jurors, it found the trial court’s record

deficient as to findings regarding three other challenges. In addition, Judge Sotomayor’s opinion

rejected the prosecution’s assertion that by failing to make an appropriate objection, for several

reasons the defendant was procedurally barred from raising his Batson claim in federal court.

First, it concluded that the state court had not relied on the defendant’s failure as a ground for

denying his Batson claim on direct or state habeas review. Second, it applied Second Circuit

precedent under which a procedural failure in a trial is not a bar to federal habeas relief unless the

state courts rely on the failure to deny relief. Third, in a relatively less restrictive reading of

Batson, Judge Sotomayor wrote that “we decline to create a procedural requirement that a party

must repeat his or her Batson challenge three times at trial in order to avoid a procedural bar.”248

For these reasons, the court vacated the district court’s denial of Galarza’s habeas petition and

remanded the case to the district court to address the Batson claims.

Right to Counsel

In Gilchrist v. O’Keefe,249 the Second Circuit rejected an inmate’s claim that he was

unconstitutionally deprived of his right to counsel during his state sentencing proceeding. Shortly

before sentencing, the trial judge declined to appoint a new attorney after previous counsel

withdrew from the case because the defendant had punched him in the ear and ruptured his

eardrum. The defendant appeared without counsel at sentencing and received a sentence of 48 to

144 months. The defendant subsequently filed a petition for a writ of habeas corpus, alleging that

his Sixth Amendment right to counsel had been violated.

In an opinion authored by Judge Sotomayor, despite noting that it would have preferred a

different handling of the situation, the court held that the state court had acted in a manner

consistent with Supreme Court precedent. In reaching its conclusion, the court addressed three

issues. First, it determined whether Supreme Court precedent recognized a distinction between a

waiver (requiring a warning as the defendant alleged) and forfeiture (as the state alleged) of

constitutional rights. Second, it addressed which Supreme Court precedent would govern any

such distinction. Finally, it considered whether the state court’s action was consistent with such

precedent.

247

The dissent argued that the defendant’s failure to object rendered the claim meritless under Batson.

Galarza, 252 F.3d at 638.

249

260 F.3d 87 (2001).

248

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Relying on Supreme Court precedent, Judge Sotomayor wrote that “even absent a warning, a

defendant may be found to have forfeited certain trial-related constitutional rights based on

certain types of misconduct.”250 In addition, her opinion concluded that Supreme Court precedent

recognizes a distinction between a waiver and a forfeiture of constitutional rights. However, it

noted that there is no Supreme Court precedent specifically addressing forfeiture of the right to

counsel. In the absence of such precedent, the majority concluded that the state court rulings were

not contrary to clearly established federal law.

In determining whether the state court’s holding constituted an unreasonable application of the

law, the majority looked to other circuits and concluded that sister circuits extended Supreme

Court precedent to the Sixth Amendment right to counsel. Finding these conclusions

unpersuasive, the court held that the trial court’s ruling was a reasonable application. However, it

noted that its holding was narrow, applying only to the habeas standard and not to the larger

question of the constitutionality of the denial of the right to counsel under these circumstances. In

addition, it noted that in light of the importance of the Sixth Amendment right to counsel, trial

courts should exercise other means instead of denying a defendant the right.

In Campusano v. United States,251 a criminal defendant argued that he had suffered per se

ineffective assistance of counsel because his attorney had failed to file a notice of appeal. The

defendant had twice instructed the attorney to file the appeal and the attorney had neglected to do

so. However, the defendant’s plea agreement contained a provision stipulating that he would not

appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range of

108-135 months, and he had been sentenced to 108 months. The defendant subsequently filed a

habeas claim to vacate, set aside or correct his sentence on the basis of ineffective assistance of

counsel. He argued that the failure to file a requested notice of appeal constituted ineffective

assistance and that no independent showing of prejudice was required.

In an opinion by Judge Sotomayor, the court held that even after a waiver, an attorney who

believes that the requested appeal would be frivolous is bound to comply with the client’s wishes

and file the notice of appeal by submitting an Anders252 brief. Failure to do so, she wrote, satisfies

the presumption of prejudice required by a Supreme Court case, Roe v. Flores-Ortega.253 She also

noted that while plea waivers were enforceable in most cases, “important constitutional rights

require some exceptions to the presumptive enforceability of a waiver,”254 and these rights are

endangered when an attorney fails to file a notice of appeal. Thus, the court remanded the case to

the district court for a determination of whether Campusano in fact did instruct his attorney to file

an appeal.

250

Id. at 97 (referring to Illinois v. Allen, 397 U.S. 337 (1970) (holding that a defendant can lose his Sixth Amendment

right to be present at his own trial if, after a trial judge’s warning that he will be removed if he continues his disruptive

behavior, he continues to be disorderly and disruptive); Taylor v. United States, 414 U.S. 17 (1973) (rejecting

petitioner’s claim that his voluntary absence from his trial constitutes a wavier without a demonstration that that the

trial court expressly warned him that the trial would continue in his absence)).

251

442 F.3d 770. (2006).

252

Anders v. California, 386 U.S. 738 (1967) (establishing process by which an attorney can conclude that the appeal is

frivolous and ask to withdraw from the case or have the court dispose of the case without the filing of merits briefs).

Anders also requires an attorney to refer “to anything in the records that might arguably support the appeal.” Id. at 744.

253

528 U.S. 470 (2000) (stating that if an attorney unreasonably fails to file a notice of appeal, this failure also gives

rise to a presumption of prejudice).

254

Campusano, 442 F.3d at 774.

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International Issues255

Among circuit court opinions written by Judge Sotomayor having international implications are a

dissent involving the Hague Convention on the Civil Aspects of International Child Abduction, a

dissent involving federal alienage jurisdiction, and two opinions for the court involving a civil

RICO suit brought by foreign governments claiming that defendant tobacco companies sought to

avoid paying foreign taxes by smuggling cigarettes into plaintiffs’ territory. Whereas Judge

Sotomayor’s dissent regarding the interpretation of the Hague Convention remains a minority rule

in federal courts, her broad approach to alienage jurisdiction where firms of overseas territories

are involved, an approach widely adopted by federal courts, was later approved by the Supreme

Court and also became the rule in the Second Circuit. Her decision that the revenue rule barred

the civil RICO case brought by the European Communities and other governments against

various tobacco manufacturers, a ruling based on Second Circuit precedent that the Supreme

Court had declined to review, was remanded by the Court in light of an intervening ruling that the

revenue rule did not apply to a government prosecution under a different statute. She reinstated

the court’s original decision finding that it was not called into question by the Supreme Court

case, a judgment the Court also let stand.

Together, the dissenting opinions show an inclination on the part of Judge Sotomayor to bring an

international perspective to her analysis, reading the Convention as protecting parental rights

adversely affected by cross-border actions by other parents and looking at the jurisdictional

statute in light of how the majority’s narrow interpretation and its resulting denial of a neutral

judicial forum for disputes with international implications would affect U.S. commercial relations

with other countries. Judge Sotomayer also consulted and analyzed foreign case law in the Hague

Convention case, but viewed this task as instructional rather than necessary to forming her

conclusion. Judge Sotomayor’s opinions on the application of the revenue rule, which in

following Second Circuit precedent continued to make the circuit unavailable as a forum for

foreign government plaintiffs, took foreign policy considerations into account at length. Because

separation of powers concerns were a key factor in why the revenue rule was applied, however,

she found that the conduct of foreign relations was best left to the political branches and refrained

from allowing the litigation to continue in the absence of clear signals from the branches that they

intended such cases to proceed.

Hague Child Abduction Convention

Croll v. Croll,256 a case of first impression for the Second Circuit, required the court to interpret

the widely ratified Hague Convention on the Civil Aspects of International Child Abduction. The

case involved an issue that remains unsettled under U.S. law and internationally, that is, whether a

parent’s right of access coupled with a ne exeat clause, i.e., a clause in a custody order prohibiting

the custodial parent from removing a child from a certain location, conferred a right of custody,

thus permitting the non-custodial parent to exercise a right of return under the Convention.

Reversing the district court, the Second Circuit ruled 2-1 that “a ne exeat clause does not

transmute access rights into rights of custody under the Convention” and ultimately that the

district court lacked jurisdiction to order the child’s return to Hong Kong, as requested by the

255

256

This section was prepared by (name redacted), Legislative Attorney.

229 F.3d 133, 143 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001).

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child’s father. In a dissenting opinion, Judge Sotomayor opined that the ne exeat clause granted

joint rights of custody to the father and the Hong Kong court that had issued the original custody

order and would have affirmed the

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