New York Times

October 10, 2009

Supreme Court Memo

Sotomayor Puts Stamp on a Day at Court

By ADAM LIPTAK
 
WASHINGTON — Justice Sonia Sotomayor may be new, but she is not shy. She quickly established herself this week as a significant force in Supreme Court arguments, asking clipped, pointed and sometimes impatient questions.

Her predecessor, Justice David H. Souter, was also an active questioner. But his inquiries tended to be elaborate and beautifully calibrated. Justice Sotomayor’s questions sometimes sounded more like a cross-examination.

In the first argument on Monday, in a case about when questioning may resume after a criminal suspect asks for a lawyer, she fired nine questions in a row at Attorney General Douglas F. Gansler of Maryland. The questions methodically cut Mr. Gansler’s argument down to its essence.

“He said, ‘I don’t want to talk to you without a lawyer,’ correct?” Justice Sotomayor said of the suspect.

Mr. Gansler said yes.

“And the state doesn’t provide him with a lawyer, correct?” Justice Sotomayor went on.

“That’s correct,” Mr. Gansler said.

“All right,” Justice Sotomayor said, having cleared away the factual underbrush. “So what gives him an understanding that one will be provided the next time he’s questioned?”

Mr. Gansler did not respond directly, and Justice Sotomayor had made her point: the defendant should not be made to ask for a lawyer a second time when his first effort had yielded nothing.

Justice Sotomayor’s attire was consistent with her businesslike attitude. She had shed the elaborate white judicial collar she wore at her investiture and at a special session of the court in September. Now she wore a plain black robe.

Many of her questions concerned the factual record. “Could I have a clarification of the facts for a moment?” she asked one lawyer. “Are you sure?” she asked another. She admonished a third lawyer for using “buzz words.”

Her style was informal. “Can I ask you something?” she said in introducing one question. The correct answer to that particular query, by the way, ought to be obvious.

O’Connor Looks Back

It is too soon, of course, to gauge how influential Justice Sotomayor will be with her colleagues or even how her influence will be felt. In remarks at William & Mary Law School last weekend, Justice Sandra Day O’Connor, who retired from the court in 2006, said there were many misconceptions about how decisions there get made.

“It isn’t running down next door and twisting an arm or going to lunch,” Justice O’Connor said. “That’s not how it works.” The justices persuade each other, if they do, by the quality of their reasoning, she said.

She added that she felt that the influence of some of the decisions she had left behind was diminishing. “Some have stood the test of time,” Justice O’Connor said. “Others are being dismantled.”

She did not sound pleased about the developments. “What would you feel?” she asked her questioner, Joan Biskupic of USA Today. “I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear.’ But life goes on. It’s not always positive.”

Court Diversity

Justice Sotomayor’s chair was empty on Wednesday during an argument in a case about the settlement of a copyright class action. She had disqualified herself, apparently because she had served as the trial judge in a related case.

Justice Sotomayor is the only justice who has served on a trial court. In another respect, she is just like all of her colleagues: they were all federal appeals court judges before they joined the Supreme Court. That is a new phenomenon. Until 2006, there had never been a Supreme Court made up entirely of former federal appeals court judges.

Seven of the nine current justices, moreover, came from appeals courts in the Boston-to-Washington corridor. Justice O’Connor was asked about the lack of geographical diversity on the court, and she answered with a surprising non sequitur.

“I don’t think they should all be of one faith,” she said, “and I don’t think they should all be from one state.”

With the addition of Justice Sotomayor, there are now six Roman Catholics on the court. Justices Ruth Bader Ginsburg and Stephen G. Breyer are Jewish. Not so long ago, there was casual talk of a “Jewish seat” and a “Catholic seat” on the court.

“Now we have a single ‘Protestant seat,’ ” said Jeffrey A. Segal, who teaches political science at the State University of New York at Stony Brook. “It belongs to John Paul Stevens, and he is 89.” There have been hints that Justice Stevens is planning to retire at the end of this term.

In a 2003 speech at Brandeis School of Law, Justice Ginsburg said the court had reached the end of an era as far as religion was concerned.

“No one regarded Ginsburg and Breyer as filling a Jewish seat,” she said. “Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to President Clinton’s appointment.”