The Supreme Court on Monday overturned Judge Sonia Sotomayor's ruling in a controversial reverse-discrimination case, prompting a new round of attacks on her by Republicans. By a vote of 5 to 4, the court ruled that the city of New Haven improperly denied promotions to a group of white firefighters who had done better on a test than minority firefighters had. But aside from the ruling's implications for antidiscrimination law, the most intriguing issue raised by the decision is what it might mean for Sotomayor's influence on a court that she is almost sure to join in October.
Despondent Republican staffers privately concede that Sotomayor's long record on the Second Circuit Court of Appeals; her background as a prosecutor, corporate lawyer and judge; and the political danger of attacking a Hispanic nominee make President Barack Obama's first pick for the court all but a shoo-in when confirmation hearings begin on July 13. But members of the Supreme Court bar and clerks who have worked there say the opinion in the Ricci case (named for one of the New Haven firefighters who brought the lawsuit) offers an advance look at Sotomayor's future relations with conservative Justices and may set the tone for her interactions with her presumed peers.
In a society of nine people, such relationships are key. In the now famous Virginia v. Black case, the usually quiet Justice Clarence Thomas spoke out passionately against cross-burning, helping push the whole court to find a new area of constitutionally unprotected speech. In a case from this term, an impassioned argument by the court's only woman, Justice Ruth Bader Ginsburg, seemed to sway the court to rule that the strip search of a 13-year-old girl violated her Fourth Amendment rights against unreasonable search. "Sometimes one person counts for more than one vote on the court," says Yale Law School professor Akhil Amar.
As a Latina Justice, Sotomayor could have a more powerful voice on issues of discrimination, Amar suggests. And the Ricci case provides a first exchange between Obama's nominee and her future colleagues on a discrimination issue. In the ruling on Monday, the court's five conservatives overturned the decision Sotomayor helped author while on the Second Circuit. That lower court had decided not to hear allegations of reverse discrimination brought by firefighters who claimed the city of New Haven had violated their civil rights by throwing out promotion-test results because no black candidates had passed.
But in overturning Sotomayor's ruling, the high court's conservatives split in tone. In a concurring opinion joined by Justices Thomas and Scalia, Justice Samuel Alito criticized the Second Circuit, saying the claims by Ricci and the other firefighters were never sufficiently considered by the lower courts and that those courts had therefore denied them "evenhanded enforcement of the law."
Justice Anthony Kennedy's majority opinion agreed that the firefighters had suffered discrimination but took a softer tone, avoiding direct criticism of Sotomayor and her colleagues. "I found the Kennedy opinion really consciously restrained," says Tom Goldstein, co-chair of the Supreme Court practice at Akin Gump. "He pulled back in order to minimize the way this case focuses on her." Chief Justice John Roberts, who Goldstein says "has a real interest in depoliticizing the court," joined with Kennedy.
If Sotomayor is confirmed, her relationship with Kennedy will be crucial. He holds the swing vote on the court, usually siding with the conservative bloc but sometimes voting with the liberals. Former clerks describe Kennedy as particularly open to the influence of people with whom he interacts. "He likes personal stories and is affected by them," says one former Kennedy clerk. "And he's affected by his relations with people."
But will Sotomayor sway Kennedy? Goldstein is skeptical when it comes to discrimination issues, pointing out that Kennedy has never sided against the government in a discrimination case. And Sotomayor will not be the only minority member on the court. "Justice Thomas gives him cover to be against affirmative action, and he has been," says the former Kennedy clerk.
Still, the lengths to which Kennedy appears to have gone to be gentle on Sotomayor seem to open the possibility of his being open to her influence. Goldstein says, "Her stories and personal experience will matter," if not on discrimination, then elsewhere.
Nevertheless, the patterns of dialogue and influence among the Justices evolve over years rather than weeks. Whereas outgoing Justice David Souter has an established relationship with Kennedy, Sotomayor is starting from scratch. So until Sotomayor settles in with her new colleagues, Souter's departure and her arrival may represent a net loss of liberal influence rather than a gain.