Prior to the Court’s 5-4 decision in Ricci, many pundits suggested that a reversal of the Appellate Court’s decision would amount to a rebuke on the legal reasoning of Judge Sotomayor since she was one of the judges in the en banc opinion. Once the decision was handed down reversing the Court of Appeals, critics of the nominee quickly opined that the reversal was evidence of Judge Sotomayor’s “judicial activism” and have urged renewed efforts to block her confirmation.
What the critics and pundits miss is that the Ricci decision was not as much a reversal of Judge Sotomayor as a reflection of the Court’s steady march to the right under Chief Justice Roberts. Under his direction the Court has taken deliberate efforts to undo many of the Warren Court protections. These efforts have been exacting and precise and are a reminder that on significant areas of employment law, states rights, criminal procedure, and executive authority we are in fact merely one decision away from fundamentally changing the face of domestic policy.
Both Northwest Austin Municipality District and Ricci are excellent examples of what to expect from the Roberts Court in the future, and the Ricci decision in particular highlights the flaws in the critiques of Judge Sotomayor. Each decision takes a good hard whack at existing legal precedent, but not by unilaterally removing a significant section of federal legislation (as is N.A.M.D.), or by fundamentally altering the analytical framework informing employment discrimination litigation (as in Ricci). Rather, each decision details exactly what kind of case advocates from the right need to produce so that the Court may meet their given political and policy goals. In the case of Ricci, the en banc decision merely applied current precedent. It was under Roberts’ lead that the Court created new precedent. To that end, Judge Sotomayor was not reversed as much as the analytical framework upon which she relied totally rewritten.
Given that Judge Sotomayor will be confirmed, and given that she is replacing Justice Souter, a reliable vote for the minority-left of the Court, there is very little that can be done to stem this march to the right. However, that does not mean that we cannot or should not have a real conversation about just what “judicial activism” means and the impact the Roberts Court has had on our democratic ideals.
photo courtesy of jbking via Flickr.