An Inconclusive Record

Appointing a Supreme Court justice is among the most important and potentially long-ranging decisions any President can make. As a result, influencing the makeup of the highest court in the land—whose nine justices are appointed for life—is one of the most enduring parts of any President’s legacy.

Justice David H. Souter “remained on the bench long after the President who appointed him left office,” notes Nan Aron, president of Alliance for Justice, a national association of public interest and consumer rights organizations.

When Souter announced his retirement on May 1, Democratic President Barack Obama was handed an early opportunity to help shape the direction of U.S. constitutional law possibly for decades to come.

Although he was appointed by former Republican president George H. W. Bush in 1990, Souter usually voted with the court’s liberal minority on divisive social issues, such as abortion and affirmative action. Obama’s choice for his replacement, Justice Sonia M. Sotomayor, is not expected to drastically alter the court’s ideological makeup.

In general, legal scholars say, her roughly 400 published opinions as an appeals court judge since 1998 are in line with the moderate-to-liberal views of her predecessor. As a result, Sotomayor is expected to fall somewhere on the political scale in the middle of the court’s three other liberal members: Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer.

“Nowhere does she try to use her rulings in order to advance some broader theory of law, economics, or sociology,” says Edward A. Fallone, an associate professor of law at Marquette University. “In this regard, she will follow in a long and noble line of pragmatic judges who have served on the Supreme Court, a list that includes Oliver Wendell Holmes and the man that she will replace, David H. Souter.”

In addition to facing cases on social issues, Sotomayor will also weigh in on cases that directly impact the chemical enterprise. For example, the high court’s docket typically includes cases involving environmental issues and business practices. It is impossible to predict exactly how a justice will rule, but her past case history provides some insight.

Although Sotomayor participated in relatively few environmental cases during her time on the federal bench, green groups enthusiastically endorsed her nomination. They say her limited record in this area suggests she is likely to follow in the footsteps of Souter, who was a reliable environmental vote.

“Sotomayor brings to the bench the most federal judicial experience in 100 years,” says Glenn Sugameli, senior policy counsel at Earthjustice, an environmental law firm in Oakland, Calif. “We anticipate that Sotomayor will bring to the court a fundamental perspective of fairness, careful attention to and understanding of environmental and related statutes, and thoughtful review of complex legal issues.”

Environmental groups point primarily to a high-profile case in 2007 in which Sotomayor ruled that the Clean Water Act precluded the Environmental Protection Agency from using cost-benefit analysis to determine the “best technology available” to protect fish from cooling-water intake structures at power plants.

Carl Pope, executive director of the Sierra Club, says he is encouraged by her opinion in the case (Riverkeeper v. EPA) for ruling “in favor of environmental protection and against attempts by the government to ignore true environmental benefits when enforcing clean water laws.”

However, Sotomayor’s ruling was overturned by the Supreme Court in a 6–3 decision in early 2008, with Justice Antonin G. Scalia stating in the majority opinion that the Clean Water Act does not indicate whether EPA can weigh costs against benefits in deciding what controls should be required.

“It is eminently reasonable,” Scalia wrote, “to conclude that the law’s silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.” Souter was one of the three jurists who dissented in the case.

The court’s ruling was considered a setback for environmentalists and a victory for advocates of cost-benefit analysis, such as industry, notes Daniel A. Farber, an expert in environmental and constitutional law at the University of California, Berkeley.

“Although Scalia claims to believe in following statutory language to the letter, Sotomayor’s interpretation clearly was more faithful to the statute’s demand that EPA’s standards reflect the best technology available for minimizing adverse environmental impact,” Farber says.

Nevertheless, Sotomayor’s opinion in the case is troubling, says William E. Allmond, vice president of government relations at the Society of Chemical Manufacturers & Affiliates.

“While it remains to be seen how Sotomayor will rule as a Supreme Court justice, SOCMA is concerned that in Riverkeeper v. EPA, she attempted to weaken EPA’s cost-benefit analysis responsibility before issuing new rules,” Allmond says. “This type of analysis is extremely important to industries like ours that are heavily regulated by EPA.”

But Richard M. Frank, executive director of the Center for Law, Energy & the Environment at UC Berkeley, says Sotomayor is not going to be an easy vote for environmental activists, industry, states, or the federal government in environmental cases.

“She seems to weigh each case on its own merits while displaying considerable skill in grasping the often arcane science and administrative history that form the basis of much modern environmental litigation,” Frank remarks.

As with Souter, Sotomayor’s record suggests her vote can go either way in business cases. She has spent the past decade on the New York-based U.S. Court of Appeals for the 2nd Circuit, which handles a large number of cases that affect corporate America because of its geographic location.

Business cases, which often impact the chemical and pharmaceutical industries, include shareholder suits, antitrust challenges to corporate mergers, patent disputes, and efforts to reduce punitive damage awards and prevent product liability lawsuits. They typically involve billions of dollars and have major consequences for the economy.

Lawyers who have examined Sotomayor’s record say that her opinions in financial matters are unpredictable, resulting in a patchwork of decisions based more on careful analysis of the facts and merits of the cases than an ideological approach to the law.

“Looking at her decisions on the court of appeals, she seems pretty evenhanded. It’s impossible to put her in a particular box as probusiness or antibusiness,” says Andrew J. Pincus, an appellate litigator who has argued 19 cases in the Supreme Court.

“You can point to some rulings that had very probusiness results, and you can look at some other rulings where the results went in favor of the party that was suing the business,” notes Pincus, a partner in the Washington, D.C., office of global law firm Mayer Brown. “I think what we can say is, she looks at every case as it comes and she doesn’t seem to have a predisposition either way.”

Fallone says Sotomayor’s written opinions as a judge are cautious and carefully reasoned. “The word that best describes her approach to the law is ‘craftsmanlike.’ She tailors her rulings to the particular facts of the case before her and adheres closely to the relevant precedent,” he remarks.

Shortly before the Senate voted 68–31 to confirm Sotomayor’s nomination to the high court on Aug. 6, the U.S. Chamber of Commerce delivered its stamp of approval.

The chamber, one of Washington’s most powerful business lobbies, cited Sotomayor’s early private practice as a litigator dealing in intellectual property at Pavia & Harcourt, a Manhattan law firm.

“We expect Judge Sotomayor to engage in fair and evenhanded application of the laws affecting American businesses,” Chamber President and Chief Executive Officer Thomas J. Donohue said in a statement.

“Through several years of experience as a law firm partner representing business interests, Judge Sotomayor has spent time considering the litigation environment from our point of view,” Donohue said. “With her unique experience as both a trial and appellate judge, Judge Sotomayor has seen firsthand the tremendous burdens that our legal system places on businesses.”

The chamber noted that business disputes now comprise nearly half of the Supreme Court’s docket. “In recent years, the Supreme Court has played an increasingly important role in deciding issues that affect the business community,” Donohue remarked. “We expect all the Supreme Court justices to apply the law fairly and predictably and not to legislate from the bench.”

Although the current Supreme Court has a reputation for divisiveness, it has been mostly united in cases affecting business interests. The justices tend to split along traditional conservative-liberal lines in deciding cases that concern ideologically charged issues like the death penalty. But the lines tend to blur in business disputes, where the legal arguments are more technical and the underlying stories are less emotional.

On the basis of her record, Sotomayor will likely align herself with the more liberal side of the court on social issues, says Thomas H. Dupree Jr., a Washington, D.C.-based appellate lawyer with Gibson, Dunn & Crutcher. But her decisions in business cases have been mixed, he says.

“It is hard to paint her record with a broad brush. There are certainly some decisions that take the plaintiff’s side of things. But there are also cases where she has sided with a corporate defendant,” says Dupree, who has argued five cases before Sotomayor.

On issues of greatest concern to the business community, such as large punitive damage awards in jury trials, Sotomayor’s views are largely a mystery. As with other business issues, her rulings in this area reflect a case-by-case approach and offer little insight into how she will vote as a justice.

Business groups have pushed for years to get the Supreme Court to put strict limits on the monetary awards plaintiffs can win in civil lawsuits that are intended to punish the party at fault. Chemical manufacturers and other businesses were encouraged last year when Souter joined a narrow majority of justices in slashing nearly $2 billion off a punitive assessment against ExxonMobil for the 1989 Exxon Valdez oil spill (C&EN, Oct. 27, 2008, page 25).

Sotomayor has twice upheld punitive damage awards by rejecting arguments they were so large as to be unconstitutional. But she has also voted to limit potential damages in several other instances.

“Although we can’t be sure exactly where she’ll come down on punitive damages, I am optimistic that she will approach the issue the same way as did her predecessor, Justice Souter, and recognize the need to rein in these awards, which are often imposed arbitrarily,” Dupree says.

But Meir Feder, who heads the appeals practice in Jones Day’s New York law office, says it is “extremely difficult” to predict where Sotomayor will stand on the issue “because the punitive damages question is one that has not broken down along the usual ideological lines.”

In testimony before the Senate Judiciary Committee on July 15, Sotomayor said she learned the importance of certainty and predictability in business law during her eight years in the private sector as a commercial litigator.

After joining Pavia & Harcourt as a young associate in 1984, she said, she noticed that the firm’s partners would revise the drafts of settlement agreements she had written, replacing her plain language with “gobbledygook,” in order to conform the agreements to court precedent.

“In business, the predictability of law may be the most necessary,” Sotomayor explained, “in the sense that people organize their business relationships based on how they understand the courts interpret their contracts.”

Her 17-year record as a trial and appellate judge shows an appreciation for the stable legal environment corporations desire, Fallone says. “I find it highly unlikely that Justice Sotomayor will adopt vague or unpredictable standards as a rule of decision,” he remarks. “She knows about the importance of predictability for business planning. Having written appellate briefs for a Wall Street firm, I know that defense lawyers constantly press judges on this point.”

Sotomayor is “somewhat liberal” on the business end, Fallone adds, in that she “does not share the assumption of many federal judges that most business litigation is frivolous. She is willing to let the plaintiff with a well-pleaded complaint get their case before a jury. I happen to believe that this is a good thing.”