In an earlier post, I warned the Right to “be wary not to dwell on [Sotomayor's] dismissive treatment of Frank Ricci.”  Upon the Supreme Court issuing the Ricci v. DeStefano decision today and the media’s complete misunderstanding of it, I hereby withdraw my earlier admonishment.

The one and only thing that should be understood about this case as it relates to Judge Sotomayor’s nomination is that all nine members of the Supreme Court found that Sotomayor’s court was in error.  Press reports that the Court “ruled against Sotomayor 5-4 along partisan lines” fundamentally misrepresent the decision issued today.

To understand exactly what happened, it’s crucial to go through the procedural history of the case.

Upon the completion of the fact-finding portion of the case (discovery), the plaintiff firefighters and the defendants, the City of New Haven and its mayor (DeStafano), each moved for summary judgment — a ruling by the court that they were entitled to judgment as a matter of law, without the need for a trial. 

The trial-level court granted summary judgment to New Haven and denied summary judgment to the firefighters.  The decision effectively ended the lawsuit.
 
That decision was then appealed to the 2nd Circuit Court of Appeals, where, as is its custom, a panel of three of the justices would rule.  Judge Sotomayor was the senior member of that panel, which issued what’s called a summary order affirming the lower court’s decision.  Summary orders provide no detail of the case and cannot be appealed any further (meaning, to the Supreme Court).

At this point, the firefighters’ case was dead forever, but for one judge on the 2nd Circuit Court of Appeals (who wasn’t on this 3-judge panel) demanding that the case be heard by the entire 2nd Circuit (en banc).  Sotomayor’s panel thus withdrew its summary order and instead issued a unanimous per curiam opinion.  That opinion, probably written by Judge Sotomayor, was eight sentences long, essentially analysis-free and likewise affirmed the lower court’s decision.  An appeal thereafter to have the entire Circuit reconsider that opinion en banc was denied by a vote of 7-6.  Judge José Cabranes and Chief Judge Dennis Jacobs wrote opinions in dissent from the denial of rehearing, urging review by the Supreme Court.

In any event, if not for the objection of one judge after Sotomayor’s original summary order, the firefighters would have had no further recourse.  But Judge Sotomayor was forced to withdraw her summary order, thus allowing appeal to the Supreme Court, which today issued its 5-4 opinion.

The media has spun the 5-4 margin as a narrow defeat of Judge Sotomayor’s position.  Such a conclusion is not only false, but ridiculous.

The majority opinion of 5 judges not only reversed the trial court’s grant of summary judgment in favor of New Haven, but also reversed the trial court’s denial of summary judgment to the firefighters and instead granted summary judgment in their favor.  Because of the Supreme Court’s decision, the case is still effectively over (without the need for a trial), but this time the firefighters won as a matter of law.
 
The dissenting opinion, written by Justice Ginsburg and signed onto by 4 justices, disagreed with majority’s grant of summary judgment in favor of the firefighters, but agreed with the reversal of summary judgment in favor of New Haven. 

In other words, all nine justices agreed that summary judgment should not have been granted in favor of New Haven, a finding that Sotomayor had affirmed twice — once by summary order and once in an analysis-free, eight-sentence opinion.  Justice Ginsburg also found that Sotomayor’s court had used the wrong standard: “The lower courts focused on [New Haven]’s ‘intent’ rather than on whether [New Haven] in fact had good cause to act.”

Needless to say, it’s troubling that a nominee for the Supreme Court would sign on to (and probably write) two analysis-free decisions that all nine members of the Supreme Court found was not only in error, but apparently predicated on the wrong standard.

President Obama weighed in today on the controversey over Sonia Sotomayor’s racial remarks:

President Barack Obama on Friday personally sought to deflect criticism of Supreme Court nominee Sonia Sotomayor, who finds herself under intensifying scrutiny for saying in 2001 that a female Hispanic judge would often reach a better decision than a white male judge. “I’m sure she would have restated it,” Obama flatly told NBC News, without indicating how he knew that.

This is probably a mistake on Obama’s part.  He now elevates this issue to a higher level.  Before, it was a topic brewing mostly on the Right, but those critics had all been marginalized as Gingrichian racists.  Most likely, however, Obama’s team has polling that showed this to be a potential pitfall during her confirmation hearings (which could also be exacerbated by the pending Ricci decision).  Press Secretary Robert Gibbs added:

“I think she’d say that her word choice in 2001 was poor.”

And just to confuse matters, Obama said:

“I think that when she’s appearing before the Senate committee, in her confirmation process, I think all this nonsense that is being spewed out will be revealed for what it is,” Obama said in the broadcast interview, clearly aware of how ethnicity and gender issues are taking hold in the debate.

It’s an odd quote from Obama and typical of his rhetoric, which doesn’t always hold up to logic.  If the stuff being spewed out is ‘nonsense’ and will be ‘revealed for what it is’ (what stuff this is, he doesn’t say), then why did he need to say that his nominee would restate what she said?  And why did his press secretary say that it was a poor choice of words?

Obama dissembles further:

“If you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through, that will make her a good judge,”

That’s just not accurate.  You can read my breakdown of the speech here.  The quote is not out of context at all, but part of a theme displayed throughout the text.  She clearly is comfortable with the notion that neutrality in judging is not attainable and therefore should be downplayed.  She sees race and gender as valuable assets in fulfilling her role as a judge.

Sotomayor said something racially insensitive and people are legitimately questioning it.  She is about to take a seat on the nation’s highest court, but she was nominated by a President who was supposed to help the nation transcend racial politics.  So what is this ‘nonsense’ that Obama speaks of?   Why is it okay for the Obama administration to say her statement was poorly worded, but not okay for others to criticize it?  Either what she said was okay, or it was not.  Clearly, Obama is uncomfortable with it, or at least worries about the effect it could have politically. 

This will be up to Sotomayor to explain away, or make worse, methinks.

William, regardless of who was at fault, Didden or his lawyer, once the statute of limitations expired Didden’s cause of action was lost according to Sotomayor.  At some point during this whole affair, he had two legal theories available to him:

1. That the taking was wrongful due to pretext, in the sense of Justice Stevens.  The Supreme Court in Kelo found this relevant only to the property’s inclusion in the renovation plan and was ultimately barred from challenge by the expired statute of limitations in Didden.

2. That a taking for a private use due to extortion is unconstitutional.  This was the attempted work around by Didden.  They wanted to distinguish this from Kelo by including the pretext piece here.  The result was that the Court said, “The ‘taking for private use’ part is a constitutional issue which has been settled by Kelo.  Adding fraud, duress, extortion, mental handicap, or mistake does not create a new constitutional issue – these are separate legal issues with existing statutes of limitation.”

I’m not saying that I necessarily agree with the decision, but if the 2d Court of Appeals holds these two positions, it really does make for a short review.  And with that, I’ll give you the last word.

A lot is being bandied back and forth over this comment by Obama’s SCOTUS nominee:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

This has prompted Newt Gingrich and others to accuse Sotomayor of racism.  Michael Hogan of Vanity Fair proceeded to spit the usual venom back Gingrich’s way, while defending Sotomayor and citing conservative Rod Dreher’s relative ambivalence as a shield from the racist charge.  Writes Dreher:

I’m still a bit troubled by the remark, but not in any important way. Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it’s unrealistic to pretend otherwise. Yet — and this is a key point — she admits that as a jurist, one is obligated to strive for neutrality. It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist.

I think, however, that Dreher takes Sotomayor too much at her word.  If you read the actual speech, you’ll find the proper context.  Here’s the key passage:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less (italics added) than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Dreher misses the context.  Yes, Sotomayor says that a jurist should strive for neutrality, but based on her lecture she seems extremely satisfied and content with the idea that actually becoming a neutral judge is unlikely.  She seems to say that it’s not really that important to try too hard on this front and, indeed, she abhors the influence of race and gender in the judiciary less than her colleague.  Her speech shows that she is quite accepting of it.

In other words, her natural inclination is to look at things through the prism of gender and race while giving lip service to the notion of objectivity.   Since she believes that white males aren’t neutral–and more importantly aren’t striving for neutrality–then her perspective helps to ‘balance’ theirs out.  More on this here:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I am not sure what she means by ‘extrapolating’ her experiences into areas in which she is unfamiliar.  It sounds like a bunch of hogwash to me.  Perhaps this mentality is what led to her abominable decision in the Ricci Case.  Those firefighters surely didn’t get much empathy from Judge Sotomayor.  Was it because they were not Latinas? 

It begs the question:  Should she not recuse herself from cases in which her personal experience has no bearing?  Otherwise, how will she be able to make a judgement?    

But don’t worry, as long as she is ’striving’ for neutrality, that’s apparently enough for Dreher.  Imagine if the Civil Rights movement merely ’strived’ for equality, but happily accepted racism as a reality of life.  Since when is being an accomodationist on bigotry a sign of a realistic outlook? 

I am not sure if Sotomayor is a racist based on what she has said and written.  But there’s no doubt in my mind that she has a world view that tags people by sex, race and class.  And that’s not an appropriate mind set for a member of the highest court in the land.

Hector, the parties in Didden submitted their briefing materials to the Second Circuit before Kelo was handed down; but, the Court (Sotomayor) - properly, in my estimation - waited until months after Kelo to issue the Didden decision.  Thus, the attorneys for Didden didn’t have the benefit of knowing what governing standard would be applied to their challenge at the time they submitted their materials to the Court.

In any event, regardless of the adequacies/inadequacies of the briefing materials (and arguments advanced, or not advanced, therein), the Court (i.e., Sotomayor) was duty bound to search the record to ensure the taking in question accorded with the standards set forth by Justice Steven’s opinion in Kelo.

Obviously, Sotomayor was aware that the City of Port Chester’s taking appears to have been consequenced by the plaintiffs’ refusal to pay a bribe.  And, of course, Justice Steven’s cautionary mandate about “pretextual takings” was likewise available to Sotomayor at the time she issued her opinion.  And yet, not only did she fail to connect those obvious dots, she non-chalantly declined to conduct any analysis at all, and summarily sanctioned a seizure of private property for failing to pay extortion money.

In sum, you’re giving a Second Circuit (and, soon to be, Supreme Court) justice with virtually unlimited resouces, including a team of Yale/Harvard/Columbia/NYU -educated law clerks, far too much deference.  If Sotomayor’s decision was actually predicated on substandard advocacy on the part of Didden’s lawyers, she should have said exactly that in her opinion, so the precedential effect of the case would have been clear. 

Instead, her opinion reads as though any State taking in the Second Circuit, even in retaliation for not paying bribe money, is beyond judicial scrutiny.  It’s a horrendous opinion, and falls far below the standards we should expect of a Second Circuit, let alone Supreme Court, justice.

William, I agree that the analysis presented was short, it is not clear to me what more you would have her say on the property rights issue.

Your reading of Justice Stevens’ majority opinion is correct regarding the ‘mere pretext’ standard, but I think it is largely irrelevant.  The question wasn’t whether or not Didden’s property was wrongfully condemned; the question was: if his property were wrongfully condemned, did Didden pursue his rights in a manner that allows the courts to make him whole?  Didden never challenged the development plan as the statute of limitations had expired and so he tried to work around that deficiency by arguing that his property was wrongfully taken for private use.  Judge Sotomayor makes plain her reasoning in Didden when she quotes Justice Stevens in Kelo,

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.

Judge Sotomayor never says that the City did the right thing, never says that extortion is acceptable and never expands Kelo.  Didden (or his lawyers) did a poor job in their challenge and Judge Sotomayor simply states (paraphrasing), “You may have been wronged, but you’ve chosen to go about settling your dispute inappropriately.  The right way to handle this, the way that would allow this Court to potentially find in your favor, would have been for you to challenge the inclusion of your property in the renovation plan – not by arguing, as you have, that the Takings Clause prevents the State from condemning your property for private use.  Kelo makes clear that this is not the standard.  If you had challenged your property’s inclusion in the renovation plan, then we could have taken up the question of a ‘pretext’ in its inclusion in that plan.  As you did not do this (or could not do this because of the statute of limitations), you have articulated no basis upon which relief can be granted.”

Hector, with regard to the statute of limitations predicate, I will assume, without checking, that Sotomayor got that portion of the opinion, and, thus, the actual result, correct.  However, because she weighed into the constitutional issue with more than mere dicta, she provided a legally-binding, alternative holding of the Court…on a very dicey issue without undertaking any actual analysis, which is my biggest gripe. 

While Kelo is both an utter abomination and perhaps the most dangerous decision of the last 50 years, Justice John Paul Stevens, in his majority opinion, at least provided some thresholds standards that the State must meet in order to lawfully seize your property: Justice Steven emphasized that “the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” does not constitute “a public use” so as to make a “taking” bona fide.

The most disturbing aspect of Didden, issued just months after Kelo was handed down, is that Justice Sotomayor makes no reference to Justice Steven’s proviso, conducts absolutely zero analysis, and, in effect, treats Kelo as though it held that every government taking is bona fide and completely insulated from judicial scrutiny. 

Of course, what we actually know about Didden is that the taking reeks of pretextualism — Didden’s property was condemned only after, and apparently in retaliation for, Didden’s refusal to pay a bribe to the City’s hand-picked developer to the tune of $800 thousands, plus a share of the business.  And yet, Judge Sotomayor provides an analysis-free imprimatur of what appears to be a patently pre-textual taking of private property by an extortionary private developer.  That Judge Sotomayor will now be rending these types of opinions while sitting on the Supreme Court troubles me greatly.

Briefly, on cert. before the Supreme Court: if the Court is not inclined to hear the case, it’s most likely because there is another (indeed, primary) basis for the decision: the statute of limitations issues, such that the Court’s holding would not ultimately affect the result.  But, that doesn’t give me any more comfort as it relates to Sonio Sotomayor.

William, the McDonald’s analogy was broken out as a second point as it was not intended to address the role of Appellate Courts or how appellate proceedings work, but rather the language used in your summary of Didden.  For example:

Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself.

As I mentioned, I had not looked up the Didden case, and I had written my point solely to caution readers that there are nuances in court that are not always found in summaries.  Some witnesses are believable and some are not.  Some evidence is compelling to a jury while other evidence is found less so.  Because of these things, a casual reader rarely has sufficient information to form a sound opinion on a case, in my opinion.  As it turns out, the lower court dismissed an amended complaint in Didden so this particular case may not be relevant, though the larger reader warning stands.

As to the extension of Kelo in Didden, the attorneys for Didden certainly agree with you, using terms like extortion.  However, the Court’s dismissal of Didden’s appeal appears to have been based on two points: (1) regardless of the nature of Wasser’s actions, a challenge to the purpose of a particular condemnation within a larger redevelopment area is not constitutionally cognizable (Didden’s holding was part of a larger renovation project) and (2) the statute of limitations had expired for Didden to challenge the entire redevelopment area.  Didden could’ve challenged the entire renovation project to protect his rights, but for whatever reason failed to do so until it was too late.  As a separate holding, the 2d Court of Appeals found that there was no unlawful exaction.  So while there may be some doubt as to whether Sotomayor knows what extortion is, as a property rights issue it may be irrelevant and misleading to say that Didden is an extension of Kelo to include extortion.

As of this writing, the Supreme Court of the United States has not granted cert to review this decision.  While this alone is not enough to conclude that the Appellate Court was right, it does suggest that the issues involved are not as crucial to the Supreme Court as other cases they chose to hear.

Hector, I want to address/clarify the points you raised below.

At the appellate level, and for purposes of review, the facts of a particular case have generally been stipulated to, and are a matter of record.  True, some hidden, smoking-gun fact(s) may undermine the criticism of a controversial decision.  But, the judge who authors an appellate decision will include in her opinion facts she finds pertinent to the result she reaches.  So, the McDonald’s/hot coffee analogy is not exactly on point, as it relates to appellate decisions.

As a brief aside, appellate decisions are reached based on papers (“briefs” and the “record”) submitted to the appellate court and, sometimes, oral argument before the appellate court.  “Sitting through the trial,” as it were, is not relevant to an appellate decision.

On Kelo, you are absolutely right that it is the law of the land and appellate courts are bound to abide by it.  However, appellate courts are not bound to extend its holding; indeed, where the factual circumstances warrant, courts should “distinguish” Kelo from the cases before them. 

Kelo involved a municipality seizing private property under the extraordinary power of eminent domain so that a developer could use the land to build a strip mall.  Didden involved a municipality re-zoning certain private property under a category of “redevelopment,” and, thereafter, assigning to a private developer what amounted to autonomous control over the designated “redevelopment” property.  After the property owner [Didden] refused to pay the developer an $800 thousand bribe, the developer had Didden’s property condemned and built his own private business on what had been Didden’s land. 

The holding in Kelo certainly does not require an extension of its logic to permit extortion of property owners.  And, perhaps most troubling is Sotomayor’s analysis-free application of Kelo to Didden:

to the extent that [Didden and his partner] assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo . . . obliges us to conclude that they have articulated no basis upon which relief can be granted.

How ironic. 

Was a time when Bush press secretary Ari Fleischer drew the ire of the Left when he cautioned that Americans should ‘watch what they say’ after the 9/11 attacks.

Naturally, this was evidence of the Bush Administration’s intent to destroy everyone’s civil rights, starting with freedom of speech.  Next would come the fascist dictatorship, as soon as all the oil was acquired from the Middle East.

Now, this:

I guess being ultra-sensitive to someone’s race is FAR MORE important than being mindful of volatile speech following an inconvenient ‘man-made disaster’ like 9/11.   

Too bad Sotomayor never took Gibbs’ advice about racial sensitivity.

Two quick points:

I apologize to those for whom this is obvious, but some readers may not be familiar with the roles that judges play at different levels in the United States.  As a Federal Appellate Court Judge, Sotomayor doesn’t really have authority to ignore any United States Supreme Court decision, including Kelo.  Though I haven’t looked up the Didden case, if there were no legal problems with the decision, it’s not her place, generally, to ignore the finder of fact in the lower court.  Sotomayor’s job is primarily judicial review of legal determinations rather than rehearing the facts of a case (there are some exceptions, of course).

Second, without actually sitting through the trial, it is very easy to be mislead regarding the merits of one side or the other.  This doesn’t stop people from making sweeping conclusions based upon them but it probably should.  As an example, everyone is familiar with the woman who spilled coffee on herself at McDonald’s and won a million dollar settlement in a classic case of a run-away jury.  The other side of the story (the woman received terrible burns across much of her body, McDonald’s had been warned that they were over-heating their coffee and that this posed a danger to the public and McDonald’s specifically chose to ignore these warnings as they felt it would be cheaper to litigate than to change their behavior) is rarely heard.  My point is only that hearing one side of a story is generally not enough to draw an informed conclusion.

So, here is what we know about PBHO’s pick of Sonia Sotomayor to replace departing Justice David Souter on the Supreme Court:

• Her curriculum vitae is first rate, and her qualifications stellar:  valedictorian from Cardinal Spellman High School in the Bronx; graduated summa cum laude with an A.B. from Princeton University; earned a J.D. from Yale Law School, where she was an editor of the Yale Law Journal; worked as Assistant District Attorney in New York Country; nominated by George H. W. Bush, and served, as Judge on U.S. District Court for the Southern District of New York (August 12, 1992 – October 7, 1998); and was elevated Circuit Judge of the United States Court of Appeals for the 2nd Circuit by Bill Clinton on October 7, 1998.
• Her personal story is extremely compelling: she and her family grew up poor in the South and East Bronx — in the Bronxdale Houses housing project and then Co-op City — and she was diagnosed with Type 1 diabetes at age 8.
• Her judicial reputation, according to most legal scholars, is solid, if unremarkable.
• She wrote the majority opinion of the Second Circuit in the Maurice Clarett v. the NFL case, 369 F.3d 124 (2004), which upheld the NFL’s 3-year post-high-school age rule.

Not surprisingly, Judge Sotomayor, largely perceived as a liberal/progressive, is drawing fire from the Right.  But, the Right should be wary not to overplay the “empathy card,” or otherwise seek to dwell on her racially dubious statements, what appears to be a high reversal rate, or her dismissive treatment of Frank Ricci, the dyslexic firefighter, in what appeared to be a textbook case of reverse discrimination.

Of far more importance to me, and what skeptics of this nomination should focus on, are a series of her rulings on property rights.  In an era where four of the remaining eight Supreme Court Justices signed onto the highly dubious Kelo v. City of New London decision, 545 U.S. 469 (2005), which permitted a city to use the extraordinary power of eminent domain to deprive a lawful owner of his property in order to build a strip mall (which was never, in fact, built), and where the sitting President of the United States is attempting to force bondholders to write-off the majority of their interest in General Motors and Chrysler, and has otherwise taken control on the financial industry with sights on the heath care industry, it’s hard to argue that property rights are not under assault.  Here is a look at a few select opinions:

Didden v. Village of Port Chester – Bart Didden wanted to build a pharmacy on land he owned in a redevelopment district in Port Chester; the town of Port Chester, by side agreement, had given Greg Wasser control of the redevelopment district. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself.  Indeed, exactly that came to pass.

On review, a panel of the Second Circuit, on which Sotomayor sat, apparently relying on Kelo, non-chalantly, and conclusorily, brushed aside the naked extortion: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”  The Court’s decision has been strongly criticized.

New York Times v. Tasini – freelance contributions to the Times sued over the paper’s subsequent licensing of their writing to electronic databases that then re-sold the pieces to customers for a substantial profit, flouting the more basic I.P principle that rights not specifically assigned remain with the owner. In her opinion for the Second Circuit, Judge Sotomayor sided with the Times.  On appeal before the U.S. Supreme Court, Judge Sotomayor’s decision was overturned 7-2 by the Court.

Krimstock v. Kelly – in a more positive case on property rights, Sotomayor invalidated New York City’s policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. 

Merrill Lynch v. Dabit – Judge Sotomayor issued the opinon of the Court, wherein she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law.  (For years, Congress has been attempted to curtail “forum shopping” of class action lawsuits in friendly state courts by forcing plaintiffs into federal court.)  The Supreme Court reversed her decision 8-0. 

Knight v. Commissioner – Judge Sotomayor issued an opinion on the tax deductibility of certain trust fees.  On review, the Supreme Court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”

Malesko v. Correctional Services Corp. -  Judge Sotomayor’s opinion extended the implied private action against federal officers alleged to have violated a citizen’s constititutional rights to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons.  On review, the Court reversed Sotomayor by a 5-4 vote.