Sotomayor: The Record

by hilzoy

This is one of the things I love most about blogs: Barack Obama nominates Sonia Sotomayor to the Supreme Court; I, a non-lawyer, wonder what her record is like, and find the summaries in newspapers much too shallow and focussed on the politics of her appointment rather than her record; but voila! SCOTUSBlog has anticipated my every whim by running a series summarizing a whole lot of her decisions. The first one has gotten some attention, but there are more! (1, 2, 3, 4.) 

They are really worth reading, especially if you are not a lawyer, since they'll give you a much richer sense of the kinds of decisions she has made than anything I've read so far in newspapers. To pick one example: you'll have a much more informed response to the idea that Judge Sotomayor will reflexively support the interests of minorities if you know about her dissent in Pappas v. Giuliani, which SCOTUSBlog summarizes as follows:

"One of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority's decision to award summary judgment to the police department. She acknowledged that the speech was "patently offensive, hateful, and insulting," but cautioned the majority against "gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech it does not like." In her view, Supreme Court precedent required the court to consider not only the NYPD's mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas's speech was anonymous, "occur[ring] away from the office on [his] own time."  She expressed sympathy for the NYPD's "concerns about race relations in the community," which she described as "especially poignant," but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD's race relations concerns "are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.""

It's worth noting that the speech in question is genuinely offensive:

"The fliers asserted white supremacy, ridiculed black people and their culture, warned against the "Negro wolf... destroying American civilization with rape, robbery, and murder," and declaimed against "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews."

If you read Sotomayor's actual dissent, she makes very good points. While I am not qualified to say whether it's a valid legal argument, it is a subtler and (to my mind) deeper take on the relevant issues than that in the majority opinion. The justification for firing Pappas was the damage it would do to the NYPD's mission if it were known that one of their employees was mailing such racist screeds. Sotomayor notes, correctly, that this is often a good reason for firing someone: if, for instance, a beat cop held such views, one might legitimately worry about how he might treat any African-Americans or Jews he happened to encounter. 

But Pappas was not a cop on the beat, a police commissioner, etc. He worked on the NYPD's computer systems. Moreover, he mailed the offensive literature anonymously, on his own time, and it took a police investigation, involving sending more charitable appeals out in special coded envelopes, to show that he had sent it. But besides making those points, Sotomayor also said this:

"The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get "out into the world" that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly.  (...)

This case differs from others we have confronted in a critical respect. In the typical public employee speech case where negative publicity is at issue, the government has reacted to speech which others have publicized in an effort to diffuse some potential disruption. In this case, whatever disruption occurred was the result of the police department's decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions. Ante, at 147-48. The majority's decision allows a government employer to launch an investigation, ferret out an employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government "reasonably believed that the speech would potentially... disrupt the government's activities." Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998). This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake."

Or, in short: the NYPD claims it has to fire Pappas because if word got out that they employed someone with his beliefs, that would hurt their ability to do their job. But they were the ones who first investigated these anonymous mailings, figured out who had sent them, and then publicized the fact that it was an NYPD employee. That makes it hard to argue that it was Pappas' mailing offensive stuff that harmed the NYPD: but for the NYPD's own actions, that harm would never have occurred. (It reminds me of someone I used to work with: when our college reached decisions he didn't like, he used to foment huge pseudo-controversies about them and then say: we can't go ahead with this; it's just too controversial!)

This is a really good point. As I said, I'm not competent to say whether it is or is not the best reading of the Pickering test, but I do think it's a subtler analysis than the majority's, and one that takes the First Amendment issues more seriously, and engages more seriously with the underlying rationale behind curtailing them. More to the point, however, knowing that in a case like this, where political correctness was plainly on the side of the majority, Justice Sotomayor was in dissent. And whether she was right or wrong, this case is worth knowing about, given how often we're likely to hear that she is all about identity politics at the expense of the rule of law. 

And that's just one example. The whole series is worth reading.

Comments

[now_what]

That really is a good sign. Many people claim to think that people who engage in speech that is unpopular or offensive to others should still enjoy protection under the rule of law. Too often they abandon their conviction when the situation comes up in the real world.

[cyd]

the NYPD claims it has to fire Pappas because if word got out that they employed someone with his beliefs, that would hurt their ability to do their job. But they were the ones who first investigated... and then publicized the fact that it was an NYPD employee.

And yet: the NYPD was correct to launch the investigation, and, having found out that an NYPD employee was at fault, they were surely correct to publicize the findings. Or do you think they should have hushed it up? If so, imagine the damage to the NYPD's community relations if the media ever found about the cover-up.

[Tom]

Why were they correct to launch the investigation? The employee's speech wasn't a crime.

[hilzoy]

Tom: I don't see why they had to launch the investigation either. Nor do I see why the results have to be disclosed: do the police normally disclose people's private speech?

[liberal japonicus]

Didn't they have to launch an investigation to determine if there was a possible threat? If I worked at a charitable organization and I got mailed some white supremacist literature, I would really want someone to figure out why they were doing it. I believe that Sotomayer brings up some good points and I'm swayed quite a bit by them. But I'm not totally convinced that the department was out of line trying to figure out what was going on.

[Tom]

I can see your point, liberal japonicus, but then that just gets us to what hilzoy asked: do the police normally disclose people's private speech?

Or, I guess that's not quite the right question, since the speech here wasn't really private. But it was anonymous, and non-criminal. And political, too, a quality that tends to attract stronger First Amendment protection.

So, yeah, do the cops normally disclose the identities of anonymous political speakers who haven't committed a crime? Is there any reason they should feel obligated to do so?

[liberal japonicus]

Tom, good questions, and it reminds me of people pointing out that anything that you write on email should be something that you are comfortable seeing on a billboard outside your house. The problem seems to be that there doesn't seem to be an intermediate step between firing and not doing anything. Perhaps in a situation like that, you shouldn't fire, but given the public relations element, the police department was in a damned if they did, damned if they didn't situation. I don't think that Sotomayer was wrong per se, but I don't think that she is completely correct. If he had expressed those sentiments to coworkers, he would have probably been fired without any question, so claiming the speech is political and is protected by the first amendment seems a bit of a ruse. Still, I'm not totally disagreeing with you, it's an interesting question.

[wj]

Well, the point might be precisely that he did not make the obnoxious statements publicly to co-workers.

And, for the sake of the discussion of Ms. Sotomayor, it would seem to put at least a small nail in the coffin of the thesis that she is a knee-jerk liberal who will vote that way every time. Odd how exposure to reality does that some times.

[efgoldman]

@ wj

Odd how exposure to reality does that some times.

She's going to get confirmed anyway, absent any hidden skeletons. Nevertheless we need to rememeber that "reality" is like an anti-kryptonite to the GOP.

Be prepared for a few months of really aggravating kabuki.

[Pooh]

LJ,

That's a really good point about the potential criminal/threatening nature of the mailings. But, the key here is that the issue before the Circuit Court was the District Court's granting summary judgment to the NYPD. In shorthand, summary judgment basically means that there are no contested factual issues which if resolved in favor of the side opposing summary judgment, would allow them to prevail at tiral.

The point as to whether the mailings were actually threatening and/or criminal and/or might expose the NYPD to legal liability is a factual question which should allow the case to survive dismissal on summary judgment, because at the summary judgment stage the court cannot assume the NYPD's contention in this regard to be true, and is in fact required to draw all reasonable inferences in favor of Pappas' contention that they were not criminal/threatening etc.

Or, I guess a shorter way to put it would be to say that your objection goes to the factual merits of the case, whereas summary judgment is primarily with the legal merits.

[The Crafty Trilobite]

In my very quick skim of Sotomayor's writing as a judge, the thing that jumps out at me is that she thinks about statutes, rules, and court-made doctrines in terms of their policy purpose. To put it another way, when two lawyers argue about what a law really means, she asks whether each lawyer's idea for how to use the law matches the sort of problem the law was meant to solve in the first place. Judges are absolutely supposed to do this, but they don't always. At the same time, she does NOT just say, well, the law must have meant to do X because X is so good, so let's do X, even though the law says Y. Her logic and sourcing are very good, and she seems to have real respect for the law as it stands.

I'm impressed. She is not a token, she's very good at her job.

[gwangung]

"In my very quick skim of Sotomayor's writing as a judge, the thing that jumps out at me is that she thinks about statutes, rules, and court-made doctrines in terms of their policy purpose. To put it another way, when two lawyers argue about what a law really means, she asks whether each lawyer's idea for how to use the law matches the sort of problem the law was meant to solve in the first place."

Oh, dear me, dear me.

That will NEVER do...

[liberal japonicus]

Well, I'm sure that if I were a judge, I'd be one of those Boston Legal types with bizarre quirks that permit the writers to use jury nullification to wrap up so many of the plots. So how the factual versus the legal plays out is beyond me.

But I would make the further observation that what you see in this dissent is how the quality of empathy that conservatives have gotten in such a tizzy about is precisely something that protects them as much as it protects anyone else. Still, the conservative experience seems to revolve around cutting one's nose off to spite one's face, so it is not unexpected.

[Nell]

Sotomayor: The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get "out into the world" that the NYPD was employing a racist.

She expressed sympathy for the NYPD's "concerns about race relations in the community," which she described as "especially poignant" ...

I admire her light touch here.

"Poignant" indeed is the department's concern that "word might get out" that they employ a racist or two.

A borinqueña who grew up in the Bronx projects must have had to bite her lip at the idea that revelations about the anonymous, off-duty political speech of an employee would add significantly to bad race relations on top of people's daily encounters with (and the very recent history of torture and murder by) police in the Giuliani-era NYPD.

[gwangung]

But I would make the further observation that what you see in this dissent is how the quality of empathy that conservatives have gotten in such a tizzy about is precisely something that protects them as much as it protects anyone else.

It's blindingly obvious, once you stop to think about it. Same with her comment about appellate courts making policy (hint: it's a descriptive statement, not a prescriptive statement). In their hurry to rap out talking points, pundits aren't bothering to stop and think about the nuts and bolts of these things and how they work in real life.

[Gwen]

It reminds me of the people who get all in a tizzy over ACLU for being damn liberals and so on, and then get all pissy over ACLU's "defending Nazis and NAMBLA". It's like, O.K., if you associate damn liberals with Nazis and NAMBLA that would be one thing (at least the arguments would be consistent), but otherwise isn't ACLU's defense of the rights of even people and organizations its members are against a mark in its favor?

I mean, if ACLU will defend the Westboro Baptist Church group, how badly does its damn-liberal-ness bias its actions? And ditto all the moaning and groaning about "the PC brigade" and whatnot. Well, I must really be the worst thought police officer ever if my arrests are limited to "no one wants to hear your bigotry, kindly shut up."

This may be yet another example of that-kind-of-conservative projection: since they think that the ends justify the means, and they'll willingly discard any kind of principle they don't like to get to a result they do, they assume that everyone else does the same, so therefore either the ACLU supports pederasty or Sotomayor never defended virulently racist speech on grounds of (gasp!) law and rights and logic.