Attacks on Sotomayor Ignore Court's History and Makeup

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Mr. Young is a graduate student in history at Indiana University and a writer for the History News Service. Attribution to the History News Service and the author is required for reprinting and redistribution of this article.

Sonia Sotomayor is too liberal to serve on the Supreme Court -- so, at least, say many conservative critics of President Barack Obama's first high court nominee. It's odd for them to protest Sotomayor's left-wing views, though, when the current Supreme Court is far more conservative than are the majority of voters.

Yet a Court that differs from public opinion is nothing new in U.S. history; in fact, disagreements between the Court and our elected officials are a natural and important part of our constitutional process. What's unusual is that conservatives are complaining about the Court at the same time they're benefiting from its rightward slant.

The Founders wanted the Supreme Court to be independent from the rest of the government. That's why they gave its occupants lifetime appointments. Since justices continue to serve long after the presidents who appointed them are gone, the Court's composition frequently lags behind the country's political mood. Justices who were popular when they took office often become jarringly out of touch before they leave. They're like a bad national hangover: we liked what we drank last night, but we wish it wouldn't stick around for quite so long.

As Obama knows, even winning the presidency doesn't guarantee winning over the Court. Chief Justice John Marshall, who served from 1801 to 1835, belonged to a political party so unpopular it actually disappeared while he was in office. That didn't stop him from making life difficult for the opposing-party presidents who served during his tenure. President Andrew Jackson, a frequent target of Marshall's legal opinions, finally pulled a stunt even Obama wouldn't get away with: he decided to just ignore Marshall altogether. "John Marshall has made his decision," an exasperated Jackson remarked at one point; "now let him enforce it."

The Court's independence means it's not obligated to vote with popular opinion even when doing so would be in the nation's best interest. In 1857, conflict over slavery was tearing the country apart, and only the fragile Compromise of 1850 stood between the United States and bloodshed. Oblivious to the precarious political situation, the Court, led by slave-owning Chief Justice Roger Taney, declared the Compromise unconstitutional -- paving the way for the Civil War.

Even the consummate political skill of Franklin D. Roosevelt wasn't enough to bring the Court to heel. Ignoring Roosevelt's friendly overtures, four right-wing justices -- nicknamed the "Four Horsemen" by liberal commentators -- proved hell-bent on striking down the entire New Deal. A panicked FDR tried to pack the Court in 1937 by adding six new justices -- but Congress rejected his proposal. A constitutional crisis was averted only when the other five justices decided to back Roosevelt's policies.

If disputes between the Court and popular opinion have a long history, so do complaints about liberal judges. Modern-day conservative attacks on the "liberal judiciary" date back to 1953, when Republican Earl Warren surprised everyone by becoming the most liberal Chief Justice in history. Over the next sixteen years, Warren and his fellow justices wrote a series of bold opinions that, among other things, struck down segregation and gave Miranda rights to accused criminals. Many Warren Court members were still around in 1973 to help legalize abortion through Roe v. Wade.

Just like today, conservatives were outraged by what they saw as the Court actively making government more liberal instead of just interpreting the law. At the time, they had a point. But since 1969, Republican presidents have appointed all but two new justices, and most of the newcomers have shifted the Court to the right. The last unabashedly liberal justice, Harry Blackmun, retired over fifteen years ago. Today's Court, led by right-wing ideologues such as Antonin Scalia and Clarence Thomas, is the most conservative since the days of the Four Horsemen.

Yet somehow, conservatives have managed to have their cake and eat it too. Despite the Court's obvious right-wing bent, the right continues to attack the judiciary as too liberal for the country. It's this popular misrepresentation of the current Court that's historically new. Slavery advocates didn't carp about abolitionist judges while Taney was Chief Justice; anti-New Dealers didn't grumble about judicial liberalism when the Four Horsemen were on the bench.

Conservatives are entitled to enjoy the fruits of a right-leaning Supreme Court in the midst of the liberal Obama administration; by lagging behind the nation's leftward turn, the Court is doing exactly what it's designed to do. But it's disingenuous for the right to whine about a liberal judiciary at the same time it benefits from a conservative one. If conservatives want their concerns about liberal judges to be taken seriously, they'll have to wait until a Democratic president or two actually tilts the Court to the left. At least then the right's attacks on the Court will mesh better with reality.

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    Andrew D. Todd - 6/3/2009

    Well, to my way of thinking, the rarity consists in a Supreme Court slot opening up when there is both a Democrat in the White House, and a safe majority in the Senate. That doesn't have anything much to do with Judge Sotomayor. There are lots of liberal judges.

    I'm not overly concerned about the patent issue. A few years ago, I gave some advice about the subject. I said, in effect, that it would be necessary to build up a "shadow patent office" with a dozen or so bright teenagers breathing down every patent examiner's neck to keep him on the straight and narrow, involving tens of thousands of teenagers. The Supreme Court's recent activity is gratifying, to be sure, but I'm not altogether sure it might not have been better in the long run to "hear us roar."

    Many of the most notorious abusers of copyright, such as software publishers, scientific journal publishers, and textbook publishers, are in the process of being outflanked by open source movements. Experience has shown that if something is of intrinsic value, people come forward to do it for free, and that if necessary, they can be voluntarily organized for whatever teamwork which may be required for the goal to be achieved. That includes classical music, incidentally. There is a growing "classical MIDI" scene on the internet, as people locate obscure works of minor eighteenth century composers, "sequence" them, and submit the resulting MIDI files to online libraries.

    That leaves, almost by definition, a residue of works lacking intrinsic value. Someone who wants to sing a song about their sense of ill-usage at not having a really expensive car probably will not be inspired to place it in the public domain.


    (Parenthetically, this is the testament of someone who turned herself off with a drug overdose. Not really a very suitable role-model for teenagers.)

    The music industry lawsuits are a bit different. In practice, it works out to people being allowed to prey on the most vulnerable members of society. If that is not a defining liberal issue, I do not know what is. It falls in the same bucket as loan-sharking, or slumlordism, or cigarette advertisements on children's television. If Judge Sotomayor should prove to be unsound on this issue, I would say that it would fundamentally undermine her claim to be a liberal.

    Jeremy Young - 6/2/2009

    Well, as a musician myself, I certainly don't disagree with you about the music industry or about what needs to be done with regard to patent law. I'm just reluctant to condemn the first liberal justice in a generation. Of course, if her overall record is bad, then I'll be willing to acquiesce -- I'm just hopeful, I think understandably.

    Andrew D. Todd - 6/2/2009

    Look at this piece of mine, from about five years back. It contains a quotation of a clipping I turned up from the London Times, dated 1785, dealing with a little girl, one Jane Thacker, who had been caught shoplifting, at a time and place when shoplifting was a hanging offense. The judge protected her, of course, notwithstanding the desires of a bloodthirsty shopkeeper, and to hell with the law. This is what usually falls under the heading of "jury nullification," though the judge had a part as well.


    comment to:


    Legally speaking, the judge was in the wrong. He did not have a leg to stand on. But, in the long term, his view prevailed.

    The currently operating law of copyright was enacted without taking account of internet file sharing. It prescribed penalties appropriate to the kind of businessmen who operated covert CD-pressing plants, and who made large sums of money. This was before Napster. It is very doubtful that the legislators understood how the law would operate in respect of internet file trading. Someone who installs a file trading program and listens to a smorgasbrod of different music over a few weeks may become liable for as much as a million dollars in statutory damages. This is obviously far more money than a typical defendant has, has ever had, or ever will have. Many judges, faced with this situation, have started to practice a form of jury nullification. Sotomayor is presumably entitled to prove that she has changed her views, that she has had a "road to Damascus" conversion, but on the face of it, she has been quoted saying, in essence, "make an example of them."

    The recording industry, like its predecessor, the London shopkeeper in 1785, fears being driven out of business by the cumulative effect of many small pilferings, and demands draconian punishment. Possibly, the fears are justified. Possibly, the shopkeeper in question did go bankrupt and wind up in a debtor's prison, another quaint institution of the eighteenth century. I don't know. The historical record only shows us a brief glimpse of the parties, and then they are lost in the past again.

    We recognize that a little girl who sits in her room listening to assorted music on her computer is not a very great sinner, even if her taste in music makes our ears grate. Even a spanking would probably be too severe, let alone all the legal penalties the Recording Industry (and presumably Sotomayor) are calling down.

    From what I have observed in blog comments, most people without engineering training do not seem to have an accurate understanding of what Kazaa and similar programs do. They perceive the software at the level of effects, ie. ask for something and it appears. No doubt a father who happened to be a trained engineer might set up a firewall so that the little girl's computer simply couldn't reach Kazaa and similar services, or Myspace and Facebook, either. There are periodic discussions of this on Slashdot. However, in practice, the cases which arise seem to involve the technologically illiterate lower classes.

    Jeremy Young - 6/2/2009

    Andrew, are you certain that it's appropriate to assert that Sotomayor is on the side of the recording industry? Or might this boil down to a different reading of the law? For instance, I don't blame the California Supreme Court for voting against Prop 8, since they pretty clearly support gay marriage. They just don't see how it's compatible with the state constitution as currently written.

    Andrew D. Todd - 6/2/2009

    Sonia Sotomayor presents certain problems from the standpoint of copyright and patent litigation. I realize that many people on HNN will not understand the importance of these issues. However, they happen to be like King George's tea in 1773. At any rate, she's on the wrong side. There are millions of people who have decided that the Recording Industry Association of American and the Motion Picture Association of America are branches of the Mafia, and that someone who consistently supports them is "mobbed up." Sotomayor qualifies, it seems.


    One of the basic facts of life is that little girls bootleg music. They sit in their rooms and listen to music, and when they want more, they run Kazaa on a computer. Little boys are more likely to be out playing football or baseball. The result is that when there is a confrontation over music piracy, there is usually a little girl in the middle, often living in rather deprived circumstances, slightly neglected and allowed to sit around listening to that dreadful pop music instead of being taken to museums or whatever. In a couple of cases I know of (eg. Atlantic vs. Anderson) the RIAA has done things which were tantamount to kidnapping a child, incidental to attempts to obtain confessions. They are dangerously insane in about the same way that Buggsy Siegel was dangerously insane. Of course, it is estimated that a third of the population has used Kazaa or some similar service at one time or another. Hence the parallel with King George's tea. And, of course, with the rifles of Lexington and Concord.

    For the last ten or fifteen years or so, since I figured out which way the wind was blowing, I have found it comically absurd that music, and such trashy music at that, should be the storm center of a technologically driven political revolution, but I have told myself repeatedly that it is no stranger than tea, after all. Well, at any rate, there it is. In the Bowels of Christ, as Oliver Cromwell would say, I tell you not to underestimate the sheer degree of anger which is building up. Large numbers of people are being ruined financially by the RIAA lawsuits, and it is only a matter of some before someone decides to seek vengeance with a deer rifle.

    Sotomayor seems to be unsound about patents as well. The patent bar is systematically corrupt in about the same way that the probate bar was systematically corrupt at the time of _Bleak House._ The patent bar is in the business of filing meritless patents and using them for legal blackmail of productive enterprise, just as the old probate bar was in the business of systematically looting estates for the profit of lawyers. Most patent lawyers simply cannot grasp the extent to which they are hated by engineers.

    (Hat Tip: http://www.groklaw.net/)

    The Supreme Court has recently been cleaning out the Augean Stables, cutting patents down to size in a series of unanimous verdicts, such as AT&T vs. MicroSoft and KSR vs. Teleflex, uniting both liberal and conservative justices. When both Justice Scalia and Justice Stevens agree on a point, it is not likely to be very controversial. When all nine agree... The Justices are vigorously engaged in reforming the patent system before it can destroy the law itself. Judge Sotomayor apparently has family connections to the new Bleak House. While her vote will have no practical consequences (an 8-1 decision instead of a 9-0 decision), it will tend to make her visible.