# Judge Sonia Sotomayor: Analysis of Selected Opinions

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 15, 2009
- **Citation:** R40649

## Text

Judge Sonia Sotomayor:
Analysis of Selected Opinions
/name redacted/, Coordinator
Legislative Attorney
/name redacted/, Coordinator
Legislative Attorney
September 15, 2009

Congressional Research Service
7-....
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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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
1
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.”
2
Kelsey v. County of Schoharie, 2009 U.S. App. LEXIS 10985 (2d Cir. 2009).

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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.

3

This portion of the report was prepared by (name redacted), Legislative Attorney.
U.S. Const. Amdt. I.
5
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).
6
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).
7
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).
8
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.
4

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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
9

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.
11
427 U.S. 539 (1976).
12
549 F.3d 861 (2d Cir. 2008).
13
380 U.S. 51 (1965).
14
549 F.3d at 870-873.
15
380 U.S. at 58-59.
10

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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

16

290 F.3d 143 (2d Cir. 2002).
Id. at 146 (citing Pickering v. Board of Education, 391 U.S. 563, 568 (1968)).
18
Id. at 154 (Sotomayor, J., dissenting).
19
Id.
17

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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
20

See Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998).
524 F.3d 361 (2d Cir. 2008).
22
Id. at 372 (quoting Connick v. Myers, 461 U.S. 138 (1983)).
23
297 F.3d 108 (2d Cir. 2002).
24
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).
25
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.
26
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...)
21

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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.
27
This portion of the report was prepared by Cynthia Brougher, Legislative Attorney.
28
Salazar v. Buono, 527 F.3d 758 (9th Cir. 2008), cert. granted, 129 S.Ct. 1313 (2008) (No. 08-472).
29
441 F.3d 96 (2d Cir. 2006).
30
Id.
31
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

32

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.
33
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.
34
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.”).
35
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).
36
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
37

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).
38
Ford, 352 F.3d at 593.
39
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.”).
40
Id. at 593-94.
41
This portion of the report was prepared by (name redacted), Legislative Attorney.
42
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).
43
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.
44
92 U.S. 542, 553 (1875).
45
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
46

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)).
48
554 F.3d 56 (2d Cir. 2009) (petition for writ of certiorari pending).
47

49

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)).
50
Maloney, 554 F.3d at 58.
51
Id. at 59 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).
52
Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).
53
Id. at 450.
54
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”
(continued...)

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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.
55
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).
56
Id. at 4.
57
This portion of the report was prepared by (name redacted), Legislative Attorney.
58
United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), cert. granted, 77 U.S.L.W. 3690 (June 22, 2009) (No. 081244).
59
18 U.S.C. § 4248 (2006).
60
442 F.3d 30 (2d Cir. 2004).
61
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)
62
514 U.S. 549 (1995).
63
18 U.S.C. § 922(q)(1)A).
64
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)).
65
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.
66
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.
67
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.
68
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.
69
343 F.3d 83 (2d Cir. 2003).
70

“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.
71
This portion of the report was prepared by (name redacted), Legislative Attorney.
72

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).
73
See discussion in the section on “Fourth Amendment,” infra.
74
471 F.3d 67 (2d Cir. 2006).
75
See discussion in the section on “First Amendment: Free Speech,” supra.
76
John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).
77
This portion of the report was prepared by (name redacted), Legislative Attorney.
78
530 F. 3d 87 (2d Cir. 2008).
79
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.

80

42 U.S.C. § 2000e-2.
U.S. Const. amend. XIV, § 1.
82
Ricci v. DeStefano, 554 F. Supp. 2d 142, 160 (D. Conn. 2006).
83
Id. at 161-62.
84
Ricci v. Destefano, 530 F.3d at 87 (2d Cir. 2008).
81

85

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).
86
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

87

243 F.3d 610 (2d Cir. 2001).
Id. at 628.
89
202 F.3d 560 (2d Cir. 2000).
90
Id. at 567.
91
Id. at 571.
92
Id. at 572.
88

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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.

93

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

94

For more information on 42 U.S.C. §§ 1981 and 1983, see CRS Report RL33386, Federal Civil Rights Statutes: A
Primer, by (name redacted).
95
195 F.3d at 151-53.
96
368 F.3d 123 (2d Cir. 2004).
97
Id. at 124-25.
98
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.

99
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 dissent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR40649. Public record. Not legal advice.