Supreme Court Review 2017/2018 TERM
THURSDAY, DECEMBER 14, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

Justice Sotomayor has established herself as one of the more liberal sitting justices, an articulate and persistent questioner and, possibly, the biggest Yankee fan on the court, although she does have to compete with Justice Scalia for that distinction.

Life Before the Court
Sonia Sotomayor was born in the Bronx, New York on June 25, 1954. Her father, Juan and her mother Celina, were both immigrants from Puerto Rico. Juan had only a third-grade education and did not speak English. He was a factory worker, while Celina worked as a telephone operator, then as a nurse. Sonia's younger brother, also named Juan, who is now a physician and professor in Syracuse, New York, was born to the family in 1957. The family lived together in a Bronx tenement and then in a housing project.

At the age of eight, Sonia was diagnosed with type-one diabetes and began taking daily insulin injections. A year later, at the age of nine, her father died of a heart attack. From then on, Sonia was raised by her mother. She attended Catholic school in the Bronx. She graduated as her class valedictorian from Cardinal Spellman High School in 1972.

When it came time to go to college, Sotomayor earned a full scholarship to Princeton University. Being a woman and a Hispanic, the Princeton of Sotomayor's day was a very foreign place. Sotomayor has said that arriving in Princeton was like "a visitor landing in an alien country." She was intimidated and quiet her first year but eventually found her voice. She became an activist for Puerto Rican and Hispanic issues on campus, especially concerned with the lack of any Latin American studies classes or a single Latin American professor at Princeton. When meetings with Princeton's leadership did not produce changes, she filed a letter of complaint with the Department of Health, Education and Welfare, stating that the school was engaging in discrimination in its hiring practices. Reporting on the matter at the time, The New York Times quoted Sotomayor as stating, "Princeton is following a policy of benign neutrality and is not making substantive efforts to change."

By the end of her time at Princeton, and largely due to Sotomayor's efforts, Princeton had hired Latin American faculty and offered a full-time course in Latin American studies. She graduated Princeton summa cum laude and was awarded the top award for undergraduates, the Pyne Prize, for outstanding academic achievement and effective support of the best interests of Princeton University.

Next to Sotomayor's yearbook photo, there is a quote from Norman Thomas, a leading American socialist and a candidate for president for the Socialist Party of America in the early twentieth century. The quote reads: "I am not a champion of lost causes, but of causes not yet won."

After Princeton, Sotomayor married Kevin Edward Noonan, her high school boyfriend, and changed her name to Sonia Sotomayor de Noonan. Her husband eventually became a biologist and patent lawyer.

Shortly after getting married, Sotomayor earned a scholarship to Yale Law School. Sotomayor once stated that she was inspired to become a lawyer and a judge from watching episodes of Perry Mason when she was a child. At Yale, Sotomayor authored a published law review note on the subject of Puerto Rican statehood and became an editor of the Yale Law Journal. As a third year student, Sotomayor attended a recruiting dinner for the Washington, D.C. law firm of Shaw, Pittman, Potts & Trowbridge. According to the Los Angeles Times, one the firm's partners, Martin Krall, "asked her whether she would have been admitted to law school if she were not Puerto Rican and whether law firms did a disservice by hiring minority students with inferior credentials and then firing them a few years later." Sotomayor responded by filing a complaint with a student-faculty tribunal that ruled in her favor. The group ordered the firm to issue an apology or risk being banned from on-campus recruitment of Yale Law School students. The firm apologized and news of the event was reported in The Washington Post.

Sotomayor received her J.D. from Yale in 1978 and was admitted to the New York Bar in 1980.

After law school, Sotomayor became an assistant district attorney in New York City. One of her most remembered cases as an assistant district attorney was assisting in the prosecution of the "Tarzan Murderer"—an acrobatic burglar who had swung down from rooftops or traveled through airshafts on narrow planks to enter apartments and shoot and rob victims. She worked long hours and in one of her job evaluations was described as a "potential superstar." She worked at the District Attorney's office until 1983.

In 1983, she amicably divorced her husband and has been single ever since. She does not have children.

For awhile, after leaving the D.A's office, Sotomayor opened a solo practice, which she operated out of her apartment in Carroll Gardens, Brooklyn. But, in 1984, she joined the commercial litigation practice group of Pavia & Harcourt in Manhattan. In 1986 on Good Morning America she was interviewed regarding her first ten years in the practice of law. She said that the practice of law is drudgery work, either sitting in a library or banging out a brief.

While working at the law firm, Sotomayor, who was still being touted by District Attorney Robert Morgenthau, was appointed by Governor Mario Cuomo to the State of New York Mortgage Agency, on which she served until 1992. She was also appointed by Mayor Ed Koch to the New York City Campaign Finance Board and to the Board of Directors of the Puerto Rican Legal Defense and Education Fund.

Sotomayor's career got a big boost when, in 1991, she was nominated by President George H.W. Bush to a judgeship on the U.S. District Court for the Southern District of New York. She had been recommended by New York's Republican senator Al D'Amato, who in turn had an agreement with New York's democratic senator Daniel Patrick Moynihan that the other could choose one of every four federal judgeships at the district court level when his party was not in the White House. Moynihan chose Sotomayor, who he believed would become the first Hispanic Supreme Court justice. The U.S. Senate unanimously confirmed her on August 11, 1992. She became the youngest judge in the Southern District and the first Hispanic federal judge in New York State. She was also the first Puerto Rican woman to serve as a judge in a U.S. federal court. Justice Sotomayor moved from Brooklyn back to the Bronx to live in her district.

It was in this role as U.S. District Court Judge that Sotomayor became renowned as the judge who saved baseball.

In 1994, owners of major league baseball teams approved a revenue-sharing plan among the major league teams. But key to the plan, was a player's salary cap, which required the players' approval. Negotiations between the owners and players continued through June 1994 when the owners decided to withhold $7.8 million that they were required to pay per previous agreement into the players' pension and benefit plans. Ultimately, on August 12, 2004, the players went on strike. The strike lasted until 1995, eliminating the rest of the 1994 season, including any playoffs and the 1994 World Series. By January 1995, the strike was continuing, and the federal government tried various means to end the strike. Five bills aimed at ending the strike were introduced in Congress. On January 26, both players and owners were ordered by President Bill Clinton to resume bargaining and reach an agreement by February 6. None of these attempted interventions prevailed. Eventually, the baseball owners attempted to unilaterally implement a new collective bargaining agreement and use replacement players instead of the current baseball players on strike. The National Labor Relations Board filed an unfair labor practices complaint against the owners on March 27. This complaint came to Judge Sotomayor, who, on March 31 issued a preliminary injunction against the owners, preventing them from unilaterally implementing a new agreement and from using replacement players. The players came back for opening day in April and the baseball strike was over. Sotomayor was well-received by many in the media for her part in ending the strike. In fact, the New York Yankees even considered giving Judge Sotomayor the honor of throwing out the first pitch at one of their games. But the idea was nixed after Judge Sotomayor suggested that it might seem inappropriate.

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. There was speculation by the media that Clinton was intending to get her into the Court of Appeals in order to elevate her to the Supreme Court as soon as an opening occurred—thus giving Clinton the honor of appointing the first Hispanic on the Supreme Court. Such speculation may have led to Republican attempts to block or at least slow down her confirmation. Sotomayor was finally confirmed 67-39 to the Second Circuit on October 2, 1998, more than a year after she had been nominated.

Sotomayor remained on the Second Circuit for ten years and heard more than 3,000 cases. During that time, she authored nearly 380 majority opinions.

Having made a noteworthy decision regarding baseball while a district court judge, she also made a ruling regarding the National Football League, when on the Second Circuit. In Clarett v. National Football League, Sotomayor upheld the NFL's eligibility rules, requiring players to wait three full seasons after high school graduation before entering the NFL draft.

Judge Sotomayor was often disappointed that people thought, including the Republicans that had stalled her confirmation in the Senate, that she was a liberal because she was a Latin American woman. A review of Judge Sotomayor's decisions while on the Second Circuit and Southern District did not point to those of a liberal ideologue. Rather, the studies concluded that she was a moderate judge with liberal inclinations.

In 2002, as a Second Circuit Judge, Sotomayor wrote the opinion for the Second Circuit in Center for Reproductive Law and Policy v. Bush, which rejected a First Amendment challenge to the Bush Administration's Mexico City Policy, which required that foreign organizations who apply for government funds to agree neither to perform abortions nor to promote abortions. Judge Sotomayor based her opinion on a prior Second Circuit precedent that was on point, Planned Parenthood Federation of America, Inc. v. Agency for International Development (1990).

Also in 2002, Judge Sotomayor, dissented in Pappas v. Giuliani, a case in which the New York Police Department fired one of its IT employees, Thomas Pappas, who was responsible for maintaining its computer systems for engaging in racially bigoted behavior outside of work. On at least two occasions Pappas responded to charitable donation solicitations from the Mineola Auxiliary Police Department by stuffing reply envelopes with offensive racially bigoted materials and returning them anonymously. One of the envelopes contained a flyer which warned against the "Negro wolf... destroying American civilization with rape, robbery, and murder," and "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews."

While a majority of the Second Circuit held that Pappas could not challenge his dismissal on First Amendment grounds, Judge Sotomayor filed the lone dissent stating:

To be sure, I find the speech in this case patently offensive, hateful, and insulting. . . . [but] where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community . . . . "At some point, such 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." . . . because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Justice Sotomayor also dissented in the 2004 case of N.G. & S.G. ex rel. S.C. v. Connecticut, wherein the Second Circuit upheld strip searches performed upon young girls in juvenile detention centers where the authorities had no reasonable basis to believe the juveniles had done anything that would constitute a crime if committed by an adult.  In addition, the authorities had no rational basis to believe the juveniles possessed weapons or other contraband. Justice Sotomayor dissented stating that because of the "severely intrusive nature of strip searches" and where"the privacy interests of emotionally troubled children are at stake" she would rule that such strip searches are only valid upon a finding of "individualized suspicion."

As a Second Circuit judge, Sotomayor was overruled by the Supreme Court on several occasions.

In Correctional Services Corp. v. Malesko (2000) Sotomayor held that the ruling in Bivens, which held that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right, could be extended to permit a federal prisoner to sue a correctional institute employee for a violation of his constitutional rights even though the correctional institute was run by a private entity and the employee was not a government employee. In Malesko, a federal inmate afflicted with a heart condition limiting his ability to climb stairs, was assigned to a bedroom on the prison's fifth floor. While a policy existed requiring the prisoners to use the stairs instead of the elevator to reach the fifth floor, the plaintiff was exempted and permitted to use the elevator. But when a CSC employee forbade him from using the elevator to reach his bedroom, he climbed the stairs, suffered a heart attack, and fell. He filed suit for violation of his Eighth Amendment right against cruel and unusual punishment. While Sotomayor had held that the prisoner could recover damages, the Supreme Court reversed, holding that the prisoner could not pursue his claim since Bivens could not be extended to private companies working for the government. Justice Stevens, joined by Souter, Ginsburg, and Breyer dissented and would have affirmed Judge Sotomayor's decision.

In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit (2005), Sotomayor wrote a unanimous opinion for the Second Circuit, holding that the Securities Litigation Uniform Standards Act of 1998 (SLUSA) did not preempt class actions based upon state law brought by private parties alleging that a company fraudulently induced them to retain stock they would have otherwise sold (known as "holder claims"). Rather, Sotomayor explained, the SLUSA, only preempted actions alleging losses caused by the purchase or sale of stock. The Supreme Court in an 8-0 opinion authored by Justice Stevens reversed holding that while the express language of the SLUSA was limited to "the purchase or sale of securities," it nevertheless worked to preempt class actions based on the retention of stock, since to permit otherwise would undermine the purpose of the statute.

In 2009, Justice David Souter announced that he would retire from the Supreme Court. On May 26, 2009, Sotomayor was nominated by President Barack Obama to fill Souter's position. Quickly, Republican opposition to Sotomayor began to appear. One of her cases while on the Second Circuit, Ricci v. DeStefano, received a lot of attention early in the process.

Ricci was a race discrimination case addressing an examination for promotions used by the New Haven Fire Department. Sotomayor and two other judges rejected the appeal filed by white firefighters, including one Hispanic firefighter. The nineteen firefighters in the case had all passed the test for promotions to management. But, the City of New Haven officials invalidated the test results because none of the black firefighters who took the exam scored high enough to be considered for the positions. New Haven was worried that the test itself had a disparate impact against minority test-takers, so they threw out the test and results altogether. White firefighters who had passed the exam objected, claiming that they were being denied promotions because of their race.

The per curiam opinion issued by the 3 judge panel of the Second Circuit, including Justice Sotomayor, was less than a page in length and simply referred readers to the lower court opinion for a discussion of the case. The opinion was was criticized partly because of its result, which held that the white firefighters and one Hispanic firefighter did not have a viable Title VII claim, and because it did not address or even acknowledge the constitutional claims at the core of the case. The Supreme Court decided to hear the case. A month prior to Justice Sotomayor's confirmation hearings before the US Senate, the Supreme Court decided the case. On June 29, 2009, the Court held 5-4 that New Haven's decision to ignore the test results violated Title VII of the Civil Rights Act of 1964—reversing Sotomayor and the lower court's opinion. Four justices, however, agreed with Sotomayor.

Sotomayor received further criticism from a 2001 Berkely Law Lecture she gave in which she said that "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." Senator John Cornyn of Texas, grilled Sotomayor on this remark at the Senate Judiciary Committee hearing in July 2009.

On July 28, 2009, the Senate Judiciary Committee approved Sotomayor's nomination. The 13–6 vote was almost entirely along party lines, with no Democrats opposing her and only one Republican, Senator Lindsay Graham of South Carolina, supporting her. Senator Graham commented that some of her speeches "bugged the hell out of me," but Senator Graham also said that some of his own speeches probably "bugged the hell out of" Democrats. Graham also commented that Sotomayor could be, in his opinion, "no worse than Souter," the justice she was replacing.

 On August 6, 2009, Sotomayor was confirmed by the full Senate with a vote of 68–31. Again, the vote was mostly along party lines with no democrats opposing her and nine Republicans supporting her.

Chief Justice John Roberts swore in Justice Sotomayor on August 8, 2009. She is the first Hispanic to serve on the court, and the third woman to serve on the court.

In September 2009, fifteen years after she was first asked, Justice Sotomayor threw out the first pitch at a New York Yankees game against the Boston Red Sox wearing a Yankee jersey and standing 15 feet in front of the pitcher's mound. She would throw out the first pitch again in June 2011 in a Yankee game against the Chicago Cubs at Wrigley field. For the Chicago game, however, she had the courtesy to wear a Cubs uniform.

Sotomayor heard arguments in her first case on the Supreme Court on September 9, 2009, during a special session wherein the court decided to hear re-argument in the case of Citizens United v. Federal Election Commission. The case considered the First Amendment rights of corporations to donate money to political campaigns and became one of the most controversial and consequential decisions of its time, and one in which Sotomayor dissented.

Justice Sotomayor's Jurisprudence
Campaign Finance
In Citizens United the court held that corporations could not be prevented from making independent expenditures in political campaigns. An independent expenditure is an expenditure of money in a political campaign that is not coordinated with a candidate and their campaign but nevertheless is made for the purpose of expressly advocating the election or defeat of a clearly identifiable candidate. The majority held that unlike direct contributions to candidates, independent expenditures are not susceptible to quid pro quo corruption (that is something of value given to a political candidate directly in exchange for a promise or benefit which the Court had previously held was the only justification for intruding upon the First Amendment in this area). Justice Sotomayor joined the four justice dissent arguing that the Court had turned a blind eye to the common sense judgment of the American people in deciding that corruption still occurs at the independent expenditure level and that campaigns would be less beholden to corporate interests if limits were placed on the ability of corporations to spend unlimited sums to influence elections. The dissent also questioned the majority's holding that corporate political speech was entitled to full First Amendment protection, arguing that the framers never intended the First Amendment rights to apply to corporations.

Attorney-Client Privilege
Justice Sotomayor's first majority opinion, joined by eight justices, was in the case of Mohawk Industries, Inc. v. Carpenter (2009). The case concerned an employee who had complained to Human Resources that the company was employing "undocumented immigrants" (a term Sotomayor used in her opinion, preferring it to the term "illegal immigrants"). The employee was directed to meet with a company lawyer, who allegedly pressured him to recant his statement. The employee claims that when he failed to do so he was fired. In the ensuing litigation the employee sought information from the company regarding his meeting with the company lawyer and the company asserted the attorney-client privilege, which the judge overruled. The company sought an interlocutory appeal. Justice Sotomayor's majority opinion held that an order by a trial court judge ordering the parties to produce material that one of the party claims would impinge upon the attorney-client privilege does not qualify for immediate appeal under the collateral order doctrine, rather absent certain exceptions they are to be reviewed on appeal from final judgment.

Justice Sotomayor issued a lone dissent in the case of United States v. Jicarilla Apache Nation (2011), which concerned the trust relationship between the Indian trust fund accounts and the United States, and specifically whether the United States could assert its attorney-client privilege to withhold certain documents relating to the management of trust funds. Seven justices (with Justice Kagan recused) held that the United States could withhold the documents. The majority opinion explained that an exception to the attorney-client privilege exists when a trustee obtains legal advice related to the exercise of fiduciary duties, since the trustee cannot withhold information relating to the trust from the beneficiary. Here, however, the United States does not act as a private trustee but as both a sovereign and a trustee. Therefore, it has an interest in itself outside of the trust relationship that must be taken into account when engaging in attorney-client communications. In dissent, Justice Sotomayor, confronts this logic, arguing that since trust funds are managed completely separately from other U.S. Government funds and pursuant to federal law that could be changed, at the moment the U.S. is in a common law fiduciary relationship with the Indian nations that requires it to share all information regarding the management of trust funds. Justice Sotomayor, concludes, "Although today's holding pertains only to a narrow evidentiary issue, I fear the upshot of the majority's opinion may well be a further dilution of the Government's fiduciary obligations that will have broader negative repercussions for the relationship between the United States and Indian tribes."

Hearsay
Justice Sotomayor also authored the majority opinion in Michigan v. Bryant (2011). The case concerned a dying man, Anthony Covington, found by police bleeding on the ground of a gas station nearly thirty minutes after being shot in the stomach. The man told the police who shot him and where he was shot. The defendant attempted to suppress the introduction of these statements as hearsay and a violation of his Sixth Amendment right to confront the witnesses against him. The state insisted that the statements were non-testimonial and therefore the Sixth Amendment right did not apply. On appeal to the Supreme Court of Michigan, the court held that the statements were inadmissible since the questioning by police that led to the statements was primarily to establish the facts of an event that had already occurred and not to meet an ongoing emergency. Justice Sotomayor joined by justices Roberts, Kennedy, Breyer and Alito held that the circumstances of the encounter, as well as the statements and actions of Covington and the police, objectively indicated that the interrogation's "primary purpose" was "to enable police assistance to meet an ongoing emergency"—since the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington.

Justice Scalia and Justice Ginsburg dissented. Justice Scalia, in an impassioned dissented, stated, "Today's tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution." Justice Scalia explained that what mattered and gave the hearsay exception its force was the intent of the person making the out-of-court statements that the prosecution was seeking to enter into evidence, not the intent of those asking the questions, here the police. While the police, Justice Scalia explained, surely believed they were responding to an ongoing emergency, Covington knew the emergency to be over and that the information he was providing police "had little value except to ensure the arrest and eventual prosecution of [the defendant]." Justice Sotomayor responded to Scalia stating that while the declarant's intent is what matters "'[t]he identity of an interrogator, and the content and tenor of his questions,' can illuminate the 'primary purpose of the interrogation.'" Here, Justice Sotomayor explained, the questioning by the police officers was not in the form of a formal, structured interrogation but primarily sought the information necessary to resolve the ongoing emergency. And, nothing in the Covington's responses indicated that he believed the emergency had ended. Justice Sotomayor quips, "Unlike the dissent's apparent ability to read Covington's mind, we rely on the available evidence, which suggests that Covington perceived an ongoing threat."

Miranda Rights to Minors
Justice Sotomayor also wrote the majority opinion for a 5-4 Court in J.D.B. v. North Carolina (2011). In J.D.B. a 13-year old student, J.D.B., was suspected of being involved in a theft and police went to the school to question him. A uniformed police officer who worked at the school took J. D. B. from his classroom to a closed-door conference room, where police and school administrators questioned him for at least 30 minutes. J.D.B. was not given Miranda warning, nor told he was free to leave, nor was he given the opportunity to call his legal guardian prior to the interview. While J.D.B. initially denied wrongdoing, he eventually confessed after officials urged him to tell the truth and told him about the prospect of juvenile detention. After he confessed, a police officer told him that he could refuse to answer questions and was free to leave. Asked whether he understood, J. D. B. nodded and provided further details, including the location of the stolen items. He also wrote a statement, at the officer's request. Before the trial court, J.D.B.'s public defender sought to suppress the boy's statements, arguing that the boy's age should have been taken into account in assessing whether he understood he was free to leave or remain silent. The North Carolina courts refused to find such an inquiry relevant. Justice Sotomayor's majority opinion reversed and remanded the case to the North Carolina court explaining that a child's age is relevant to a Miranda custody analysis and instructed the court below to address the question of whether J. D. B. was in custody when he was interrogated, taking into account all of the relevant circumstances of the interrogation, including J. D. B.'s age at the time.

Justice Alito, joined by Chief Justice Roberts, and justices Scalia and Thomas, dissented, explaining that the purpose of the prophylactic Miranda regime was to provide a clear rule that can be easily applied in all cases. Justice Alito wrote, "A key contributor to this clarity, at least up until now, has been Miranda's objective reasonable-person test for determining custody." The majority's holding, however, Justice Alito bemoaned, opens the door to a subjective analysis that will "shift[] the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures." Now that the door is open Justice Alito predicts that a future court might add additional factors to the new subjective test "such as intelligence, education, occupation, or prior experience with law enforcement."

Justice Sotomayor responded that the inquiry is not a subjective one since "[C]hildhood yields objective conclusions like those we have drawn ourselves—among others, that children are 'most susceptible to influence' and 'outside pressures.' . . . [O}fficers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child's age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." She concludes 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."

Illegal Immigration
Justice Sotomayor dissented in the politically charged case of Chamber of Commerce v. Whiting (2011), which upheld an Arizona law that punished employers of illegal aliens by, in certain circumstances, revoking their licenses to do business in the state. A lobbying group representing business interests, the United States Chamber of Commerce, brought suit arguing that Arizona had violated the Supremacy Clause of the Constitution by passing its own immigration enforcement statute, the penalties of which went far beyond what the federal government had authorized in the Immigration Reform and Control Act of 1986 (IRCA). Arizona responded that the IRCA specifically excluded from preemption "state licensing and similar laws" and that its law was nothing more than a licensing law. The US Chamber of Commerce responded that the legislative history made clear that Congress intended the licensing exception to allow states to suspend, revoke, and refuse to reissue licenses to those who were found by federal officials (not state officials) to have violated immigration laws. Arizona, however, was making such determinations themselves. In a 5-3 opinion authored by Chief Justice Roberts, the Supreme Court held that the intent of Congress is immaterial when the plain text of the law that Congress passed answers the question at hand - the law explicitly excepts licensing laws from its preemption clause and the Arizona law does nothing more than exact licensing penalties on companies that are found to have violated federal and state law.

Justice Sotomayor's solo dissent in Whiting (Justice Breyer joined by Justice Ginsburg dissented separately) argued that since the licensing exception is "hardly a paragon of textual clarity" the Court assess the intent of Congress in order to discern its meaning. Congress could not have intended what the majority holds, she argues, since it would clearly frustrate the "comprehensive scheme" Congress intended to create. Arizona was not just deciding whether or not to issue licenses to companies in its state that had been adjudged by a federal judge to have violated federal immigration, she explained, rather it was attempting to decide for itself whether federal immigration laws were being violated under the pretext of a licensing decision. Justice Sotomayor quotes from the Congressional Record on the IRCA, "The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens." The threat to revoke a license to do business after a state attorney finds immigrations laws to have been violated, she argued, is the very equivalent of the civil/criminal sanctions the IRCA sought to preempt. Chief Justice Roberts responded that Justice Sotomayor could not link her theory that a licensing penalty can only follow a federal determination to the text of the statute. Roberts stated, "It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text."

Privacy Act Damages
Justice Sotomayor also dissented in FAA v. Cooper (2012). In Cooper, a five justice majority held that a pilot who kept his HIV positive diagnosis from Federal Aviation Administration (FAA), since at the time the FAA did not issue medical certificates required to operate aircraft to persons with HIV, could not bring suit for mental and emotional distress when the Social Security Administration revealed his medical status to the FAA, in violation of the Privacy Act. The Privacy Act, the court held, only allowed recovery for "actual damages," which does not encompass non-pecuniary damages such as those for mental and emotional distress. Justice Sotomayor, joined by justices Ginsburg and Breyer dissented arguing that the Court in limiting the words "actual damages" to pecuniary loss had "cripple[d] the Act's core purpose of redressing and deterring violations of privacy interests" since "individuals can no longer recover what our precedents and common sense understand to be the primary, and often only, damages sustained as a result of an invasion of privacy, namely mental or emotional distress."

Dissents from Denials of Certiorari
Sotomayor has proven herself to be one of the more opinionated members of the Court. Issuing both solo concurrences and solo dissents more often than many of her colleagues on the court. She also more frequently issues statements and dissents regarding denials of certiorari than many of her colleagues.

In Buck v. Thaler (2011), the Supreme Court denied certiorari, causing Justice Sotomayor joined by Justice Kagan to dissent and Justice Alito joined by Justices Scalia and Breyer to issue a statement in response explaining the court's decision to deny review. The case concerned an expert witness in the State of Texas ,Walter Quijano, who testified in seven Texas death penalty cases that the defendant's race was a factor in determining future dangerousness for sentencing purposes, specifically that Hispanics and Blacks are over represented in the Criminal Justice System and that this increases the probability that they would pose a future danger. When one of the cases prior to Buck v. Thaler reached the Supreme Court, the then Attorney General of Texas announced publicly that "it is inappropriate to allow race to be considered as a factor in our criminal justice system" and identified six cases where Dr. Quijano had offered testimony connecting race to future dangerousness. The Texas Attorney General caused the state to confess error in five of the six cases and not to oppose the defendants' federal habeas corpus petitions in those cases. In each of the five cases, the defendants were again sentenced to death. The sixth case was Buck v. Thaler. In that case, the State chose to not to confess error since, they argued, the defense not the prosecution had called the expert to the stand and had elicited testimony from Dr. Quijano regarding race as a factor. Buck appealed to the Supreme Court but it denied his petition for review.

Justice Sotomayor, joined by Justice Kagan dissented from the denial of certiorari explaining that while the defense may have called Dr. Quijano and first elicited testimony regarding the factor of race, the prosecution on cross-examination in Buck's case furthered the harm by asking, "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?" Dr. Quijano answered, "Yes." Justice Sotomayor argued that this question was even more powerful than the testimony elicited on direct by the defendant where Quijano referred to race as part of his overall opinion that Buck would pose a low threat to society were he imprisoned. The prosecutor, on the other hard, singled out the factor of race as making Buck more dangerous.

Justice Alito, joined by justices Scalia and Breyer, issued a statement in response to the dissent stating that while the prosecutor did ask a single question on cross-examination referring to race as a factor it did not go beyond what the defense had already elicited on direct and, furthermore, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck's race. Justice Alito opened his statement with a review of the underlying facts in Buck v. Thaler stating: "One morning in July 1995, petitioner Duane E. Buck went to his ex-girlfriend's house with a rifle and a shot- gun. After killing one person and wounding another, Buck chased his ex-girlfriend outside. Her children followed and witnessed Buck shoot and kill their mother as she attempted to flee. An arresting officer testified that Buck was laughing when he was arrested and said 'the bitch deserved what she got.'"

Justice Sotomayor issued a lone dissent from the Court's decision to deny review to the case of Pitre v. Cain (2010). Pitre concerned a Louisiana state prisoner with HIV, who stopped taking his HIV medication to protest his transfer to another prison facility. As punishment for this decision, prison officials subjected him to hard labor in 100-degree heat. During this time, he was twice rushed to the emergency room and repeatedly requested lighter duty work. Pitre sued for violation of his Eighth Amendment right against cruel and unusual punishment. Justice Sotomayor believed the case presented a sufficiently important issue for resolution by the Court. She stated that while "prison officials may forcibly treat a mentally ill inmate with antipsychotic drugs 'if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest,' the Court has not had an opportunity to decide "whether prison officials may require inmates with HIV to take medication, such that the refusal to do so might justify the imposition of sanctions by such officials."

In Conclusion
In a relatively short time on the Court, Justice Sotomayor has established herself as an intellectual anchor whose incisive questioning and analysis has earned her the respect of her peers. She is a champion of the underrepresented and often argues for granting greater protections to those appellants who are disfavored, forgotten or unpopular. She is also known for working tirelessly on cases and demanding similarly long hours from her clerks. She is the second most persistent questioner at oral arguments (after Justice Scalia) and one of the Court's most prolific writers.

In May 2011, Justice Sotomayor reported that she earned nearly $1.2 million from a book deal entered into with Knopf Doubleday Publishing Group to publish a memoir about her rise from a South Bronx housing project to the nation's highest court. A release date for the book has not yet been announced.