Sonia Sotomayor

Sotomayor had wanted to become a judge since she was in elementary school, and in 1991 she was recommended for a spot by Democratic New York senator Daniel Patrick Moynihan.[7] Moynihan had an unusual bipartisan arrangement with his fellow New York senator, Republican Al D'Amato, whereby he would get to choose roughly one out of every four New York district court seats even though a Republican was in the White House.[34][85][86][87] Moynihan also wanted to fulfill a public promise he had made to get a Hispanic judge appointed for New York.[20] When Moynihan's staff recommended her to him, they said "Have we got a judge for you!"[7] Moynihan identified with her socio-economic and academic background and became convinced she would become the first Hispanic Supreme Court justice.[12][77] D'Amato became an enthusiastic backer of Sotomayor,[88] who was seen as politically centrist at the time.[7][20] Of the impending drop in salary from private practice, Sotomayor said: "I've never wanted to get adjusted to my income because I knew I wanted to go back to public service. And in comparison to what my mother earns and how I was raised, it's not modest at all."[7]

Sotomayor was thus nominated on November 27, 1991, by President George H. W. Bush to a seat on the U.S. District Court for the Southern District of New York vacated by John M. Walker Jr.[5] Senate Judiciary Committee hearings, led by a friendly Democratic majority, went smoothly for her in June 1992, with her pro bono activities winning praise from Senator Ted Kennedy and her getting unanimous approval from the committee.[7][88][89] Then a Republican senator blocked her nomination and that of three others for a while in retaliation for an unrelated block Democrats had put on another nominee.[88][90] D'Amato objected strongly;[90] some weeks later, the block was dropped, and Sotomayor was confirmed by unanimous consent[63][88] of the full United States Senate on August 11, 1992, and received her commission the next day.[5]

Sotomayor became the youngest judge in the Southern District[91] and the first Hispanic federal judge in New York State.[92] She became the first Puerto Rican woman to serve as a judge in a U.S. federal court.[93] She was one of seven women among the district's 58 judges.[7] She moved from Carroll Gardens, Brooklyn, back to the Bronx in order to live within her district.[7]

Sotomayor generally kept a low public profile as a district court judge.[22] She showed a willingness to take anti-government positions in a number of cases, and during her first year in the seat, she received high ratings from liberal public-interest groups.[20] Other sources and organizations regarded her as a centrist during this period.[7][20] In criminal cases, she gained a reputation for tough sentencing and was not viewed as a pro-defense judge.[94] A Syracuse University study found that in such cases, Sotomayor generally handed out longer sentences than her colleagues, especially when white-collar crime was involved.[95] Fellow district judge Miriam Goldman Cedarbaum was an influence on Sotomayor in adopting a narrow, "just the facts" approach to judicial decision-making.[56]

As a trial judge, she garnered a reputation for being well-prepared in advance of a case and moving cases along a tight schedule.[20] Lawyers before her court viewed her as plain-spoken, intelligent, demanding, and sometimes somewhat unforgiving; one said, "She does not have much patience for people trying to snow her. You can't do it."[20]

On March 30, 1995, in Silverman v. Major League Baseball Player Relations Committee, Inc.,[96] Sotomayor issued a preliminary injunction against Major League Baseball, preventing it from unilaterally implementing a new collective bargaining agreement and using replacement players. Her ruling ended the 1994 baseball strike after 232 days, the day before the new season was scheduled to begin. The Second Circuit upheld Sotomayor's decision and denied the owners' request to stay the ruling.[22][97][98] The decision raised her profile,[12] won her the plaudits of baseball fans,[22] and had a lasting effect on the game.[99] In the preparatory phase of the case, Sotomayor informed the lawyers of both sides that, "I hope none of you assumed ... that my lack of knowledge of any of the intimate details of your dispute meant I was not a baseball fan. You can't grow up in the South Bronx without knowing about baseball."[100]

In Dow Jones v. Department of Justice (1995),[101] Sotomayor sided with the Wall Street Journal in its efforts to obtain and publish a photocopy of the last note left by former Deputy White House Counsel Vince Foster. Sotomayor ruled that the public had "a substantial interest"[102] in viewing the note and enjoined the U.S. Justice Department from blocking its release.

In New York Times Co. v. Tasini (1997), freelance journalists sued the New York Times Company for copyright infringement for The New York Times' inclusion in an electronic archival database (LexisNexis) of the work of freelancers it had published. Sotomayor ruled that the publisher had the right to license the freelancers' work. This decision was reversed on appeal, and the Supreme Court upheld the reversal; two dissenters (John Paul Stevens and Stephen Breyer) took Sotomayor's position.[103]

In Castle Rock Entertainment, Inc. v. Carol Publishing Group (also in 1997), Sotomayor ruled that a book of trivia from the television program Seinfeld infringed on the copyright of the show's producer and did not constitute legal fair use. The United States Court of Appeals for the Second Circuit upheld Sotomayor's ruling.

Judge Sonia Sotomayor with her godson at the United States Court of Appeals signing ceremony in 1998

On June 25, 1997, Sotomayor was nominated by President Bill Clinton to a seat on the U.S. Court of Appeals for the Second Circuit, which was vacated by J. Daniel Mahoney.[5] Her nomination was initially expected to have smooth sailing,[22][104] with the American Bar Association Standing Committee on the Federal Judiciary giving her a "well qualified" professional assessment.[105] However, as The New York Times described, "[it became] embroiled in the sometimes tortured judicial politics of the Senate."[106] Some in the Republican majority believed Clinton was eager to name the first Hispanic Supreme Court justice and that an easy confirmation to the appeals court would put Sotomayor in a better position for a possible Supreme Court nomination (despite there being no vacancy at the time nor any indication the Clinton administration was considering nominating her or any Hispanic). Therefore, the Republican majority decided to slow her confirmation.[17][104][106] Radio commentator Rush Limbaugh weighed in that Sotomayor was an ultraliberal who was on a "rocket ship" to the highest court.[104]

During her September 1997 hearing before the Senate Judiciary Committee, Sotomayor parried strong questioning from some Republican members about mandatory sentencing, gay rights, and her level of respect for Supreme Court Justice Clarence Thomas.[89] After a long wait, she was approved by the committee in March 1998, with only two dissensions.[89][104] However, in June 1998, the influential Wall Street Journal editorial page opined that the Clinton administration intended to "get her on to the Second Circuit, then elevate her to the Supreme Court as soon as an opening occurs"; the editorial criticized two of her district court rulings and urged further delay of her confirmation.[107] The Republican block continued.[22][104]

Ranking Democratic committee member Patrick Leahy objected to Republican use of a secret hold to slow down the Sotomayor nomination, and Leahy attributed that anonymous tactic to GOP reticence about publicly opposing a female Hispanic nominee.[104][108] The prior month, Leahy had triggered a procedural delay in the confirmation of fellow Second Circuit nominee Chester J. Straub—who, although advanced by Clinton and supported by Senator Moynihan, was considered much more acceptable by Republicans—in an unsuccessful effort to force earlier consideration of the Sotomayor confirmation.[109]

During 1998, several Hispanic organizations organized a petition drive in New York State, generating hundreds of signatures from New Yorkers to try to convince New York Republican senator Al D'Amato to push the Senate leadership to bring Sotomayor's nomination to a vote.[110] D'Amato, a backer of Sotomayor to begin with and additionally concerned about being up for re-election that year,[110] helped move Republican leadership.[12] Her nomination had been pending for over a year when Majority Leader Trent Lott scheduled the vote.[106] With complete Democratic support, and support from 25 Republican senators including Judiciary chair Orrin Hatch,[106] Sotomayor was confirmed on October 2, 1998, by a 67–29 vote.[111] She received her commission on October 7.[5] The confirmation experience left Sotomayor somewhat angry; she said shortly afterwards that during the hearings, Republicans had assumed her political beliefs based on her being a Latina: "That series of questions, I think, were symbolic of a set of expectations that some people had [that] I must be liberal. It is stereotyping, and stereotyping is perhaps the most insidious of all problems in our society today."[22]

Over her ten years on the Second Circuit, Sotomayor heard appeals in more than 3,000 cases and wrote about 380 opinions where she was in the majority.[12] The Supreme Court reviewed five of those, reversing three and affirming two[12]—not high numbers for an appellate judge of that many years[17] and a typical percentage of reversals.[112]

Sotomayor's circuit court rulings led to her being considered a political centrist by the ABA Journal[74][113] and other sources and organizations.[74][91][113][114][115][116] Several lawyers, legal experts, and news organizations identified her as someone with liberal inclinations.[117][118][119] In any case, the Second Circuit's caseload typically skewed more toward business and securities law rather than hot-button social or constitutional issues.[17] Sotomayor tended to write narrow, practiced rulings that relied on close application of the law to the facts of a case rather than import general philosophical viewpoints.[17][120] A Congressional Research Service analysis found that Sotomayor's rulings defied easy ideological categorization, but did show an adherence to precedent and an avoidance of overstepping the circuit court's judicial role.[121] Unusually, Sotomayor read through all the supporting documents of cases under review; her lengthy rulings explored every aspect of a case and tended to feature leaden, ungainly prose.[122] Some legal experts have said that Sotomayor's attention to detail and re-examination of the facts of a case came close to overstepping the traditional role of appellate judges.[123]

Across some 150 cases involving business and civil law, Sotomayor's rulings were generally unpredictable and not consistently pro-business or anti-business.[124] Sotomayor's influence in the federal judiciary, as measured by the number of citations of her rulings by other judges and in law review articles, increased significantly during the length of her appellate judgeship and was greater than that of some other prominent federal appeals court judges.[125] Two academic studies showed that the percentage of Sotomayor's decisions that overrode policy decisions by elected branches was the same as or lower than that of other circuit judges.[126]

Sotomayor was a member of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts.[103] In October 2001, she presented the annual Judge Mario G. Olmos Memorial Lecture at UC Berkeley School of Law;[15] titled "A Latina Judge's Voice"; it was published in the Berkeley La Raza Law Journal the following spring.[127][128] In the speech, she discussed the characteristics of her Latina upbringing and culture and the history of minorities and women ascending to the federal bench.[129] She said the low number of minority women on the federal bench at that time was "shocking".[41] She then discussed at length how her own experiences as a Latina might affect her decisions as a judge.[129] In any case, her background in activism did not necessarily influence her rulings: in a study of 50 racial discrimination cases brought before her panel, 45 were rejected, with Sotomayor never filing a dissent.[41] An expanded study showed that Sotomayor decided 97 cases involving a claim of discrimination and rejected those claims nearly 90 percent of the time.[130] Another examination of Second Circuit split decisions on cases that dealt with race and discrimination showed no clear ideological pattern in Sotomayor's opinions.[131]

In the Court of Appeals seat, Sotomayor gained a reputation for vigorous and blunt behavior toward lawyers appealing before her, sometimes to the point of brusque and curt treatment or testy interruptions.[12][132] She was known for extensive preparation for oral arguments and for running a "hot bench", where judges ask lawyers plenty of questions.[132][133] Unprepared lawyers suffered the consequences, but the vigorous questioning was an aid to lawyers seeking to tailor their arguments to the judge's concerns.[133] The 2009 Almanac of the Federal Judiciary, which collected anonymous evaluations of judges by lawyers who appear before them, contained a wide range of reactions to Sotomayor.[12] Comments also diverged among lawyers willing to be named. Attorney Sheema Chaudhry said, "She's brilliant and she's qualified, but I just feel that she can be very, how do you say, temperamental."[132] Defense lawyer Gerald B. Lefcourt said, "She used her questioning to make a point, as opposed to really looking for an answer to a question she did not understand."[132] In contrast, Second Circuit Judge Richard C. Wesley said that his interactions with Sotomayor had been "totally antithetical to this perception that has gotten some traction that she is somehow confrontational."[132] Second Circuit Judge and former teacher Guido Calabresi said his tracking showed that Sotomayor's questioning patterns were no different from those of other members of the court and added, "Some lawyers just don't like to be questioned by a woman. [The criticism] was sexist, plain and simple."[132] Sotomayor's law clerks regarded her as a valuable and strong mentor, and she said that she viewed them like family.[51]

In 2005, Senate Democrats suggested Sotomayor, among others, to President George W. Bush as an acceptable nominee to fill the seat of retiring Supreme Court Justice Sandra Day O'Connor.[134]

In the 2002 decision Center for Reproductive Law and Policy v. Bush,[135] Sotomayor upheld the Bush administration's implementation of the Mexico City Policy, which states that "the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations."[136] Sotomayor held that the policy did not constitute a violation of equal protection, as "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."[135]

In Pappas v. Giuliani (2002),[137] Sotomayor dissented from her colleagues' ruling that the New York Police Department could terminate from his desk job an employee who sent racist materials through the mail. Sotomayor argued that the First Amendment protected speech by the employee "away from the office, on [his] own time", even if that speech was "offensive, hateful, and insulting", and that therefore the employee's First Amendment claim should have gone to trial rather than being dismissed on summary judgment.[138]

In 2005, Sotomayor wrote the opinion for United States v. Quattrone.[139] Frank Quattrone had been on trial on charges of obstructing investigations related to technology IPOs. Some members of the media had wanted to publish the names of the jurors deciding Quattrone's case, and a district court had issued an order to forbid the publication of the juror's names. In United States v. Quattrone, Sotomayor wrote the opinion for the Second Circuit panel striking down this order on First Amendment grounds, stating that the media should be free to publish the names of the jurors. The first trial ended in a deadlocked jury and a mistrial, and the district court ordered the media not to publish the names of jurors, even though those names had been disclosed in open court. Sotomayor held that although it was important to protect the fairness of the retrial, the district court's order was an unconstitutional prior restraint on free speech and violated the right of the press "to report freely on events that transpire in an open courtroom".[139]

In 2008, Sotomayor was on a three-judge panel in Doninger v. Niehoff[140] that unanimously affirmed, in an opinion written by Second Circuit Judge Debra Livingston, the district court's judgment that Lewis S. Mills High School did not violate the First Amendment rights of a student when it barred her from running for student government after she called the superintendent and other school officials "douchebags" in a blog post written while off-campus that encouraged students to call an administrator and "piss her off more".[140] Judge Livingston held that the district judge did not abuse her discretion in holding that the student's speech "foreseeably create[d] a risk of substantial disruption within the school environment",[141] which is the precedent in the Second Circuit for when schools may regulate off-campus speech.[140] Although Sotomayor did not write this opinion, she has been criticized by some who disagree with it.[142]

Sotomayor was part of the three-judge Second Circuit panel that affirmed the district court's ruling in Maloney v. Cuomo (2009).[143] Maloney was arrested for possession of nunchucks, which are illegal in New York; Maloney argued that this law violated his Second Amendment right to bear arms. The Second Circuit's per curiam opinion noted that the Supreme Court has not, so far, ever held that the Second Amendment is binding against state governments. On the contrary, in Presser v. Illinois, a Supreme Court case from 1886, the Supreme Court held that the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state".[143] With respect to the Presser v. Illinois precedent, the panel stated that only the Supreme Court has "the prerogative of overruling its own decisions,"[144] and the recent Supreme Court case of District of Columbia v. Heller (which struck down the district's gun ban as unconstitutional) did "not invalidate this longstanding principle".[143] The panel upheld the lower court's decision dismissing Maloney's challenge to New York's law against possession of nunchucks.[145] On June 2, 2009, a Seventh Circuit panel, including the prominent and heavily cited judges Richard Posner and Frank Easterbrook, unanimously agreed with Maloney v. Cuomo, citing the case in their decision turning back a challenge to Chicago's gun laws and noting the Supreme Court precedents remain in force until altered by the Supreme Court itself.[144]

In N.G. & S.G. ex rel. S.C. v. Connecticut (2004),[146] Sotomayor dissented from her colleagues' decision to uphold a series of strip searches of "troubled adolescent girls" in juvenile detention centers. While Sotomayor agreed that some of the strip searches at issue in the case were lawful, she would have held that due to "the severely intrusive nature of strip searches",[146] they should not be allowed "in the absence of individualized suspicion, of adolescents who have never been charged with a crime".[146] She argued that an "individualized suspicion" rule was more consistent with Second Circuit precedent than the majority's rule.[146]

In Leventhal v. Knapek (2001),[147] Sotomayor rejected a Fourth Amendment challenge by a U.S. Department of Transportation employee whose employer searched his office computer. She held that, "Even though [the employee] had some expectation of privacy in the contents of his office computer, the investigatory searches by the DOT did not violate his Fourth Amendment rights"[147] because here "there were reasonable grounds to believe" that the search would reveal evidence of "work-related misconduct".[147]

In 2004, Sotomayor was part of the judge panel that ruled in Swedenburg v. Kelly that New York's law prohibiting out-of-state wineries from shipping directly to consumers in New York was constitutional even though in-state wineries were allowed to. The case, which invoked the 21st Amendment, was appealed and attached to another case. The case reached the Supreme Court later on as Swedenburg v. Kelly and was overruled in a 5–4 decision that found the law was discriminatory and unconstitutional.[148]

Sotomayor was involved in the high-profile case Ricci v. DeStefano that initially upheld the right of the City of New Haven to throw out its test for firefighters and start over with a new test, because the City believed the test had a "disparate impact"[149] on minority firefighters. (No black firefighters qualified for promotion under the test, whereas some had qualified under tests used in previous years.) The City was concerned that minority firefighters might sue under Title VII of the Civil Rights Act of 1964. The City chose not to certify the test results and a lower court had previously upheld the City's right to do this. Several white firefighters and one Hispanic firefighter who had passed the test, including the lead plaintiff who has dyslexia and had put extra effort into studying, sued the City of New Haven, claiming that their rights were violated. A Second Circuit panel that included Sotomayor first issued a brief, unsigned summary order (not written by Sotomayor) affirming the lower court's ruling.[150] Sotomayor's former mentor José A. Cabranes, by now a fellow judge on the court, objected to this handling and requested that the court hear it en banc.[151] Sotomayor voted with a 7–6 majority not to rehear it and a slightly expanded ruling was issued, but a strong dissent by Cabranes led to the case reaching the Supreme Court in 2009.[151] There it was overruled in a 5–4 decision that found the white firefighters had been victims of racial discrimination when they were denied promotion.[152]

In Clarett v. National Football League (2004),[153] Sotomayor upheld the National Football League's eligibility rules requiring players to wait three full seasons after high school graduation before entering the NFL draft. Maurice Clarett challenged these rules, which were part of the collective bargaining agreement between the NFL and its players, on antitrust grounds. Sotomayor held that Clarett's claim would upset the established "federal labor law favoring and governing the collective bargaining process".[154]

In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit (2005),[155] Sotomayor wrote a unanimous opinion that the Securities Litigation Uniform Standards Act of 1998 did not preempt class action claims in state courts by stockbrokers alleging misleading inducement to buy or sell stocks.[112] The Supreme Court handed down an 8–0 decision stating that the Act did preempt such claims, thereby overruling Sotomayor's decision.[112]

In Specht v. Netscape Communications Corp. (2001),[156] she ruled that the license agreement of Netscape's Smart Download software did not constitute a binding contract because the system didn't give "sufficient notice" to the user.[157]

In Correctional Services Corp. v. Malesko (2000),[158] Sotomayor, writing for the court, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing Supreme Court doctrine, known as "Bivens"—which allows suits against individuals working for the federal government for constitutional rights violations—could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5–4 decision, saying that the Bivens doctrine could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling.

In Gant v. Wallingford Board of Education (1999),[159] the parents of a black student alleged that he had been harassed due to his race and had been discriminated against when he was transferred from a first grade class to a kindergarten class without parental consent, while similarly situated white students were treated differently. Sotomayor agreed with the dismissal of the harassment claims due to lack of evidence, but would have allowed the discrimination claim to go forward. She wrote in dissent that the grade transfer was "contrary to the school's established policies" as well as its treatment of white students, which "supports the inference that race discrimination played a role".

In Krimstock v. Kelly (2002),[160] Sotomayor wrote an opinion halting New York City's practice of seizing the motor vehicles of drivers accused of driving while intoxicated and some other crimes and holding those vehicles for "months or even years" during criminal proceedings. Noting the importance of cars to many individuals' livelihoods or daily activities, she held that it violated individuals' due process rights to hold the vehicles without permitting the owners to challenge the City's continued possession of their property.

In Brody v. Village of Port Chester (2003 and 2005),[161] a takings case, Sotomayor first ruled in 2003 for a unanimous panel that a property owner in Port Chester, New York was permitted to challenge the state's Eminent Domain Procedure Law. A district court subsequently rejected the plaintiff's claims and upon appeal the case found itself again with the Second Circuit. In 2005, Sotomayor ruled with a panel majority that the property owner's due process rights had been violated by lack of adequate notice to him of his right to challenge a village order that his land should be used for a redevelopment project. However, the panel supported the village's taking of the property for public use.[162]

In Didden v. Village of Port Chester (2006),[163] an unrelated case brought about by the same town's actions, Sotomayor joined a unanimous panel's summary order to uphold a trial court's dismissal – due to a statute of limitations lapse – of a property owner's objection to his land being condemned for a redevelopment project. The ruling further said that even without the lapse, the owner's petition would be denied due to application of the Supreme Court's recent Kelo v. City of New London ruling. The Second Circuit's reasoning drew criticism from libertarian commentators.[164][165]

President Barack Obama meets with Judge Sonia Sotomayor and Vice President Joe Biden prior to an announcement in the East Room, May 26, 2009

Following Barack Obama's 2008 presidential election victory, speculation arose that Sotomayor could be a leading candidate for a Supreme Court seat.[74][113][114][166] New York Senators Charles Schumer and Kirsten Gillibrand wrote a joint letter to Obama urging him to appoint Sotomayor, or alternatively Interior Secretary Ken Salazar, to the Supreme Court if a vacancy should arise during his term.[167] The White House first contacted Sotomayor on April 27, 2009, about the possibility of her nomination.[168] On April 30, 2009, Justice David Souter's retirement plans leaked to the media, and Sotomayor received early attention as a possible nominee for Souter's seat to be vacated in June 2009.[169] On May 25, Obama informed Sotomayor of his choice; she later said, "I had my [hand] over my chest, trying to calm my beating heart, literally."[170] On May 26, 2009, Obama nominated her.[171] She became only the second jurist to be nominated to three different judicial positions by three different presidents.[172] The selection appeared to closely match Obama's presidential campaign promise that he would nominate judges who had "the heart, the empathy, to recognize what it's like to be a teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."[173]

Sotomayor's nomination won praise from Democrats and liberals, and Democrats appeared to have sufficient votes to confirm her.[174] The strongest criticism of her nomination came from conservatives and some Republican senators regarding a line she had used in similar forms in a number of her speeches, particularly in a 2001 Berkeley Law lecture:[129][174] "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."[15] Sotomayor had made similar remarks in other speeches between 1994 and 2003, including one she submitted as part of her confirmation questionnaire for the Court of Appeals in 1998, but they had attracted little attention at the time.[175][176] The remark now became widely known.[177] The rhetoric quickly became inflamed, with radio commentator Rush Limbaugh and former Republican Speaker of the House of Representatives Newt Gingrich calling Sotomayor a "racist" (although the latter later backtracked from that claim),[178] while John Cornyn and other Republican senators denounced such attacks but said that Sotomayor's approach was troubling.[179][180] Backers of Sotomayor offered a variety of explanations in defense of the remark,[181] and White House Press Secretary Robert Gibbs stated that Sotomayor's word choice in 2001 had been "poor".[179] Sotomayor subsequently clarified her remark through Senate Judiciary Committee chair Patrick Leahy, saying that while life experience shapes who one is, "ultimately and completely" a judge follows the law regardless of personal background.[182] Of her cases, the Second Circuit rulings in Ricci v. DeStefano received the most attention during the early nomination discussion,[183] motivated by the Republican desire to focus on the reverse racial discrimination aspect of the case.[177] In the midst of her confirmation process the Supreme Court overturned that ruling on June 29.[152] A third line of Republican attack against Sotomayor was based on her ruling in Maloney v. Cuomo and was motivated by gun ownership advocates concerned about her interpretation of Second Amendment rights.[177] Some of the fervor with which conservatives and Republicans viewed the Sotomayor nomination was due to their grievances over the history of federal judicial nomination battles going back to the 1987 Robert Bork Supreme Court nomination.[184]

A Gallup poll released a week after the nomination showed 54 percent of Americans in favor of Sotomayor's confirmation compared with 28 percent in opposition.[185] A June 12 Fox News poll showed 58 percent of the public disagreeing with her "wise Latina" remark but 67 percent saying the remark should not disqualify her from serving on the Supreme Court.[186] The American Bar Association gave her a unanimous "well qualified" assessment, its highest mark for professional qualification.[105] Following the Ricci overruling, Rasmussen Reports and CNN/Opinion Research polls showed that the public was now sharply divided, largely along partisan and ideological lines, as to whether Sotomayor should be confirmed.[187][188]

Sotomayor before the Senate Judiciary Committee for the first day of hearings on July 13, 2009

Sotomayor's confirmation hearings before the Senate Judiciary Committee began on July 13, 2009, during which she backed away from her "wise Latina" remark, declaring it "a rhetorical flourish that fell flat" and stating that "I do not believe that any ethnic, racial or gender group has an advantage in sound judgment."[189][190] When Republican senators confronted her regarding other remarks from her past speeches, she pointed to her judicial record and said she had never let her own life experiences or opinions influence her decisions.[191] Republican senators said that while her rulings to this point might be largely traditional, they feared her Supreme Court rulings – where there is more latitude with respect to precedent and interpretation – might be more reflective of her speeches.[192][193] Sotomayor defended her position in Ricci as following applicable precedent.[189] When asked whom she admired, she pointed to Justice Benjamin N. Cardozo.[194] In general, Sotomayor followed the hearings formula of recent past nominees by avoiding stating personal positions, declining to take positions on controversial issues likely to come before the Court, agreeing with senators from both parties, and repeatedly affirming that as a justice she would just apply the law.[195]

On July 28, 2009, the Senate Judiciary Committee voted 13–6 in favor of Sotomayor's nomination, sending it to the full Senate for a final confirmation vote. Every Democrat voted in her favor, as did one Republican, Lindsey Graham.[196][197] On August 6, 2009, Sotomayor was confirmed by the full Senate by a vote of 68–31. All Democrats present, along with the Senate's two Independents plus nine Republicans, voted for her.[198][199]

President Obama commissioned Sotomayor on the day of her confirmation,[200] and her swearing-in ceremony took place on August 8, 2009, at the Supreme Court Building. Chief Justice John Roberts administered the prescribed constitutional and judicial oaths of office, at which time she became the 111th justice (99th associate justice) of the Supreme Court.[201] Sotomayor is the first Hispanic to serve on the Supreme Court,[198][199][202][203][lower-alpha 2] and is one of five women who have served on the Court, along with Sandra Day O'Connor (from 1981 to 2006), Ruth Bader Ginsburg (from 1993 to 2020), Elena Kagan (since 2010),[206] and Amy Coney Barrett (since 2020).[207] Sotomayor's appointment gave the Court a record six Roman Catholic justices serving at the same time.[3][lower-alpha 3]

The four women Supreme Court Justices: Sandra Day O'Connor, Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. O'Connor is not wearing a robe because she is retired from the Court.

Sotomayor cast her first vote as an associate Supreme Court justice on August 17, 2009, in a stay of execution case.[208] She was given a warm welcome onto the Court[209] and was formally invested in a September 8 ceremony.[210] Sotomayor's inaugural case in which she heard arguments was on September 9 during a special session, Citizens United v. Federal Election Commission. It involved the controversial aspect of the First Amendment and the rights of corporations in campaign finance;[211] Sotomayor dissented.[212][213] In her vigorous examination of Floyd Abrams, representing the First Amendment issues in the case, Sotomayor challenged him, questioning 19th century rulings of the Court and saying, "What you are suggesting is that the courts, who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with ... [imbuing] a creature of State law with human characteristics."[211][214]

Sotomayor's first major written opinion was a dissent in the Berghuis v. Thompkins case dealing with Miranda rights.[212][215] As her first year neared completion, Sotomayor said she felt swamped by the intensity and heavy workload of the job.[215] During the oral arguments for National Federation of Independent Business v. Sebelius, Sotomayor showed her increasing familiarity with the Court and its protocols by directing the opening questions of the arguments to Donald Verrilli, the Solicitor General who was representing the government's position.[216]

In succeeding Justice Souter, Sotomayor had done little to change the philosophical and ideological balance of the Court.[212][213][215] While many cases are decided unanimously or with different voting coalitions, Sotomayor has continued to be a reliable member of the liberal bloc of the court when the justices divide along the commonly perceived ideological lines.[217] Specifically, her voting pattern and judicial philosophy has been in close agreement with that of Justices Breyer, Ginsburg and Kagan.[218] During her first couple of years there, Sotomayor voted with Ginsburg and Breyer 90 percent of the time, one of the highest agreement rates on the Court.[212][219] In a 2015 article titled "Ranking the Most Liberal Modern Supreme Court Justices", Alex Greer identified Sotomayor as representing a more liberal voting pattern than both Elena Kagan and Ruth Bader Ginsburg.[220] Greer placed Sotomayor as having the most liberal voting history of all the current sitting Justices, and slightly less liberal than her predecessors Thurgood Marshall and John Marshall Harlan II on the Court.[220]

Chief Justice Roberts, together with Justices Kennedy, Thomas, and Alito (and former Justice Scalia) have comprised the identifiable conservative wing of the Court.[221] Although, five of the justices on the Supreme Court self-identify as having Roman Catholic affiliation, Sotomayor's voting history identifies her singly among them with the liberal bloc of the Court. However, there is a wide divergence among Catholics in general in their approaches to the law.[3] Due to her upbringing and her past jobs and positions, Sotomayor has brought one of the more diverse set of life experiences to the court.[222]

There have been some deviations from the ideological pattern. In a 2013 book on the Roberts Court, author Marcia Coyle assessed Sotomayor's position on the Confrontation Clause of the Sixth Amendment as a strong guarantee of the right of a defendant to confront his or her accusers.[218] Sotomayor's judicial philosophy on the issue is seen as being in parity with Elena Kagan and, unexpectedly for Sotomayor, also in at least partial agreement with the originalist reading of Antonin Scalia when applied to the clause.

On January 20 and 21, 2013, Sotomayor administered the oath to Vice President Joe Biden for the inauguration of his second term. Sotomayor became the first Hispanic and fourth woman to administer the oath to a president or vice president.[223] On January 20, 2021, Sotomayor administered the oath of office to Kamala Harris for her inauguration as vice president, the first woman to ever hold the office.[224]

By the end of her fifth year on the court, Sotomayor had become especially visible in oral arguments and in passionate dissents from various majority rulings, especially those involving issues of race, gender and ethnic identity.[225] Sotomayor has shown her individuality on the Court in a number of decisions. In her reading of the constitutionality of the Obama health care law favoring the poor and disabled, she sided with Ginsburg against fellow liberals Breyer and Kagan.[226] In dealing with the Chief Justice, Sotomayor had no difficulty in responding to his statement that "the way to stop discrimination on the basis of race is to stop discrimination on the basis of race," by stating, "I don't borrow Chief Justice Roberts's description of what color-blindness is... Our society is too complex to use that kind of analysis."[227] In the manufacturer liability case of Williamson v. Mazda, which the court decided unanimously, she wrote a separate concurring opinion.[228] Sotomayor's rapport with her clerks is seen as more formalistic than some of the other justices as she requires detailed and rigorous evaluations of cases she is considering with a table of contents attached.[229] When compared to Kagan directly, one of their colleagues stated, "Neither of them is a shrinking violet". Coyle, in her 2013 book on the Roberts Court stated that: "Both women are more vocal during arguments than the justices whom they succeeded, and they have energized the moderate-liberal side of the bench."[230]

During her tenure on the court, Sotomayor has also become recognizable as being among the court's strongest voices in supporting the rights of the accused.[231] She has been identified by Laurence Tribe as the foremost voice on the court calling for reforming criminal justice adjudication – in particular as it relates misconduct by police and prosecutors, abuses in prisons, concerns about how the death penalty is used, and the potential for loss of privacy – and Tribe has compared her will to reform in general to that of past Chief Justice Earl Warren.[232]

In January 2019, Bonnie Kristian of The Week wrote that an "unexpected civil libertarian alliance" was developing between Sotomayor and Neil Gorsuch "in defense of robust due process rights and skepticism of law enforcement overreach."[233]

Sotomayor in 2017

In 2011, Sotomayor wrote the majority opinion in J.D.B. v. North Carolina, in which the Supreme Court held that age is relevant when determining when a person is in police custody for Miranda purposes. J.D.B. was a 13-year-old student enrolled in special education classes whom police had suspected of committing two robberies. A police investigator visited J.D.B. at school, where he was interrogated by the investigator, a uniformed police officer, and school officials. J.D.B. subsequently confessed to his crimes and was convicted. J.D.B. was not given a Miranda warning during the interrogation, nor an opportunity to contact his legal guardian. In determining that a child's age properly informs the Miranda custody analysis, Sotomayor wrote that "to hold... that a child's age is never relevant to whether a suspect has been taken into custody— and thus to ignore the very real differences between children and adults— would be to deny children the full scope of the procedural safeguards that Miranda guarantees to adults".[234] Sotomayor's opinion cited the Court's earlier decisions in Stansbury v. California (holding that held that a child's age "would have affected how a reasonable person" would "perceive his or her freedom to leave") and Yarborough v. Alvarado (holding that a child's age "generates commonsense conclusions about behavior and perception"). Sotomayor also pointed out that the law recognizes that child's judgment is not the same as an adult's, in the form of legal disqualifications on children as a class (e.g. limitations on a child's ability to marry without parental consent). Associate Justice Samuel Alito, jointed by three other justices, wrote a dissenting opinion.

In United States v. Alvarez (2012), the Court struck down the Stolen Valor Act (a federal law that criminalized false statements about having received a military medal) on First Amendment grounds. While a 6–3 majority of the Court agreed that the law was an unconstitutional violation of the Free Speech Clause, it could not agree on a single rationale. Sotomayor was among four justices, along with Justices Roberts, Ginsburg and Kennedy, who concluded that a statement's falsity is not enough, by itself, to exclude speech from First Amendment protection. Justices Breyer and Kagan concluded that while false statements were entitled to some protection, the act was invalid because it could have achieved its objectives in less restrictive ways. Justices Scalia, Thomas and Alito dissented.[235]

In National Federation of Independent Business v. Sebelius (2012), Sotomayor was part of a 5–4 majority that upheld most of the provisions of the Patient Protection and Affordable Care Act (while being part of a dissent against the reliance upon the Constitution's Taxing and Spending Clause rather than Commerce Clause in arriving at the support). Legal writer Jeffrey Toobin wrote, "Sotomayor's concerns tended toward the earthbound and practical. Sometimes, during oral arguments, she would go on tangents involving detailed questions about the facts of cases that would leave her colleagues stupefied, sinking into their chairs. This time, though, she had a simple line of inquiry. States require individuals to buy automobile insurance (implicitly suggesting the unavoidable comparison to health insurance and the fairness of the applying the same principle to health insurance as well)."[236] Sotomayor concluded with the incisive rhetorical flourish in the Court directed at the attorneys: "Do you think that if some states decided not to impose an insurance requirement that the federal government would be without power to legislate and require every individual to buy car insurance?" For Toobin, this distinction drawn by Sotomayor was the heart of the argument for the case in which she was part of the prevailing majority opinion.[236]

Sotomayor was part of a 5–3 majority in Arizona v. United States (2012), that struck down several aspects of the Arizona SB 1070 anti-illegal immigration law.[237][238]

On the Court, Sotomayor has taken positions in favor of an expansive view of the Fourth Amendment protections relating to privacy rights and search and seizure.[239][240] In United States v. Jones (2012), all nine justices agreed that a warrant was likely to be required before police could place a GPS tracking device on a suspect's car. Most justices sided with a narrow opinion written by Justice Samuel Alito, but Sotomayor (in a lone concurrence) advocated a more expansive view of privacy rights in a digital age, calling for a re-assessment of the longstanding third-party doctrine: "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties."[241] The following year, federal judge Richard J. Leon cited this concurrence in his ruling that the National Security Agency's bulk collection of Americans' telephony records likely violated the Fourth Amendment.[241] Law professors Adam Winkler and Laurence Tribe were among those who said that Sotomayor's Jones concurrence had been influential in calling out the need for a new basis in understanding privacy requirements in a world, as she wrote, "in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."[241] In Missouri v. McNeely (2013), Sotomayor wrote the majority opinion holding that a warrant is required before police take a nonconsensual blood test of a motorist suspected of drunk driving.[240] In Navarette v. California (2014), Sotomayor joined Justice Scalia's dissent from an opinion finding no Fourth Amendment violation from a traffic stop and drug seizure based solely on an anonymous tip submitted to 9-1-1.[240] Sotomayor was the lone dissenter in Mullenix v. Luna (2015), a case in which the Court held, per curiam, that an officer who fired six shots at a fleeing fugitive in a high-speed car chase was entitled to qualified immunity; Sotomayor argued that "By sanctioning a 'shoot first, think later' approach to policing, the Court renders the protections of the Fourth Amendment hollow."[240][242] In Utah v. Strieff, a case involving the exclusionary rule, Sotomayor wrote a dissent from the Court's ruling that evidence obtained as a result of an illegal police stop could be admitted if the stopped person was later found to have an outstanding traffic warrant,[240][243] writing that it was a "remarkable proposition" that the existence of a warrant could justify a stop illegally based on police officers' "whim or hunch."[243] Echoing her earlier dissent in Heien v. North Carolina (2014), and citing the works of figures such as W. E. B. Du Bois, James Baldwin, and Ta-Nehisi Coates, Sotomayor wrote that Strieff and other Supreme Court Fourth Amendment jurisprudence sent the message "that you are not the citizen of a democracy but the subject of a carceral state, just waiting to be catalogued."[244][245]

In 2014, Sotomayor dissented from a 6–3 ruling that granted Wheaton College of Illinois, a religiously affiliated university, an exemption from complying with Affordable Care Act (ACA)'s mandate on contraception.[246] The ruling, which came the immediate wake of the Court's 5–4 decision in Burwell v. Hobby Lobby, in which the conservative bloc had prevailed, was opposed by the court's three female members: Sotomayor, Ginsburg and Kagan. Writing in dissent, Sotomayor wrote that the case was at odds with the majority's previous statements in Hobby Lobby and said, "Those who are bound by our decisions usually believe they can take us at our word ... Not today." Sotomayor stated further her opinion that the decision compromised "hundreds of Wheaton's employees and students of their legal entitlement to contraceptive coverage."[246]