Tom Goldstein, whose empiricism-based coverage of Sonia Sotomayor has been hands-down the most helpful at helping us understand her jurisprudence, provided an analysis of race-based discrimination cases and found that Sotomayor, out of 96 cases, rejected claims of discrimination 81% of the time.
These numbers are being used to rebut the claim that Sotomayor has some kind of tribal loyalty that influences her jurisprudence, which makes sense. But there's also a vague suggestion that this means she made the "right decision" most of the time, and this analysis necessarily ignores the specifics of each case. Because Sotomayor sided with the respondent more times than the plaintiff, it's assumed she made the correct decision. (Few people are, for example, asking whether her high rate of siding with respondents means she has a tin ear when it comes to discrimination.) But we have no way of knowing that. The assumption of course, is that most claims of discrimination are illegitimate or frivolous, and that's why Sotomayor is seen as having come to the "correct" decision. But unless we examine each case individually as Goldstein did, we have no way of coming to an informed conclusion on the subject.
We can actually learn a great deal more about Sotomayor's views from her dissent in Giuliani v Pappas, highlighted by Glenn Greenwald yesterday, in which she defended the right of a white man, employed by the NYPD, who was fired after he engaged in anonymous hate speech on his own time. He was the focus of an NYPD investigation into his views, and it was the NYPD which publicized their findings, Pappas had attempted to obscure his identity. Pappas was not a beat cop, he did not interact with the community, and so Sotomayor felt that "the majority lays down too broad a rule regarding the government's ability to disqualify an individual from public employment based on the expression of an unpopular viewpoint."
This individual example ultimately tells us more about Sotomayor's jurisprudence than Goldstein's numbers alone. Faced with speech she found abhorrent, Sotomayor nevertheless dissented from the majority on the court because she believed Pappas shouldn't be fired because of his public views. Her willingness to extend that standard universally, even to people she disagrees with, suggests that she takes her duty to extend "constant and complete vigilance in checking my assumptions, presumptions and perspectives" quite seriously.
-- A. Serwer
