One of the major critiques being launched at judge Sonia Sotomayor involves the Supreme Court's reversal of three of her appellate court decisions. The Washington Times trumpeted the charge with an ambitious headline: "Sotomayor reversed 60% by high court." And Fox News' Major Garrett asked pointed questions about the matter to spokesman Robert Gibbs during Tuesday's briefing.
The charge is one of several being held up by conservatives as evidence that Sotomayor stands far outside the judicial mainstream. But a little bit of context greatly dilutes its effectiveness. Indeed, if anything, it makes Sotomayor a picture of mainstream jurisprudence.
Of the three opinions Sotomayor had overturned by the Supreme Court, two found the man she is being nominated to replace -- Justice David Souter -- on her side.
In Correctional Services Corp. v. Malesko, Sotomayor and the Court of Appeals held that an inmate could sue a halfway house operated by a private corporation on behalf of the Bureau of Prisons for injuries he suffered in that halfway house. Issued in 2000, the decision was reversed by the Supreme Court a year later by a five-to-four decision. Then-Chief Justice Rehnquist held that the law Sotomayor cited in making her opinion only concerned individual officers and not private entities. Among those who dissented were Justice Stevens, Ginsburg, Breyer and Souter, who held that the private corporation was, in fact, a federal agent tasked to perform functions "that would otherwise be performed by individual employees of the Federal Government."
In Entergy Corp. v. Riverkeeper, Sotomayor's opinion held that the Environmental Protection Agency was not authorized to conduct a cost-benefit analysis for a rule it issued on protecting fish and other aquatic life near large power plants. Sotomayor then remanded the case to the EPA to clarify the basis behind the rule it issued. The Supreme Court reversed that decision, with the majority opinion written by Justice Scalia. Justice Breyer concurred in part and dissented in part. Justices Stevens, Souter, and Ginsburg all dissented.
In between those two cases, Sotomayor issued an opinion in Merrill Lynch v. Dabit, declaring, in part, that a suit against Merrill Lynch for breaching its fiduciary duties fell under state law and not the Securities Litigation Uniformity Standards Act (SLUSA). The Supreme Court ended up vacating Sotomayor's decision, reasoning that SLUSA covered both the "purchase or sale" of securities and the retention and delay of selling them.
Taken as a whole, the decisions suggest that, if anything, Sotomayor is of a similar judicial philosophy to the justice she is poised to replace. The numbers, moreover, make her appear decidedly non-controversial. In an eleven-year career, she issued 380 opinions. Five were appealed to the Supreme Court and only three were reversed. According to SCOTUSblog, a 60 percent reversal rate is actually lower than the overall Supreme Court reversal rate for the past five years. In 2008, for example, the Court reversed 75.3 percent of the cases it considered.
Indeed, one of the darlings of judicial conservatives, Justice Samuel Alito, also had a share of his opinions dismissed or overruled by the Court before he himself was appointed to that bench.
In Friends of the Earth v. Laidlaw, the Supreme Court rejected Alito's argument that the right to sue to enforce the Clean Water Act was strictly the purview of private citizens and not Congress. In Rompilla v. Beard, the court reversed a majority opinion that Alito had issued in which he insisted that the demands of legal representation by a death row inmate exceeded constitutional requirements. And in Planned Parenthood v. Casey, the Supreme Court disagreed with Alito's reasoning that it was within the constitution to require those seeking an abortion to notify their spouses.
"The proper focus of constitutional inquiry," the Court noted, "is the group for whom the law is a restriction, not the group for whom the law is irrelevant."
And then there was this Associated Press article from the days of Alito's confirmation battle:
As a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, Alito has written hundreds of opinions or dissents in his 15 years on the federal bench. A few of those cases have gained a spot on the selective Supreme Court docket; even more have been affirmed or reversed through the prism of high court rulings on other appellate cases.
Alito has lost some close cases in the Supreme Court; two years ago he was soundly rejected in the case of a former elevator operator who was seeking Social Security disability payments.
Some observers contend it would be inaccurate to focus solely on Alito's won-loss record before the high court. The Supreme Court's motivation for choosing a case and its history with certain appellate courts must be factored in.
Judge Edward R. Becker, a Reagan appointee who has served with Alito on the 3rd Circuit, said of the reversals: "We've all had our share."