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Sonia Sotomayor on Civil Rights

 


I'm an "affirmative action baby" at Princeton & Yale

Opposition to race, ethnic and gender preferences was behind the 31 GOP Senate votes against Supreme Court nominee Sonia Sotomayor. To conservatives, the Sotomayor nomination was an Obama declaration that affirmative action is forever.

Judge Sotomayor was herself a lifetime beneficiary, who once called herself and "affirmative action baby." If she had gone through the "traditional numbers route" of Princeton and Yale Law, she said, "it would have been highly questionable if I would have been accepted; my test scores were not comparable to that of my classmates."

As a student at Princeton, she demanded that the school be ordered to hire Hispanic teachers. At Yale, she co-chaired a coalition that demanded more Latino professors and administrators and "shared the alarm of others in the group when the Supreme Court prohibited the use of quotas in university admissions in the 1978 decision "Regents of the University of California v. Bakke."

Source: Suicide of a Superpower, by Pat Buchanan, p.156-157 , Oct 18, 2011

Wise Latina woman reaches better conclusion than white male

At a 2001 UC Berkeley symposium, Sotomayor said that the gender and ethnicity of judges does and should affect their judicial decision-making. From her speech:

"By ignoring our differences as women or men of color we do a disservice both to the law and society. I accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

"Our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure that I agree with the statement. First, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

Source: CNN report on upcoming Sotomayor hearings , Aug 1, 2009

Anonymous offensive speech by off-duty cops is protected

Pappas v. Giuliani, 2002, involved an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist & bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority's decision to award summary judgment to the police department. She acknowledged that the speech was "patently offensive, hateful, and insulting," but cautioned the majority against ignoring "the centrality of First Amendment freedoms just because it is confronted with speech is does not like." In her view, Supreme Court precedent required the court to consider not only the NYPD's mission but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas's speech was anonymous, "occurring away from the office on his own time."
Source: ScotusBlog.com, "Civil Litigation" , Jul 25, 2009

Struck down parts of the anti-terror USA Patriot Act

Sotomayor joined an appeals court ruling that struck down parts of the anti-terror USA Patriot Act that prohibited Internet service providers from telling customers when the government asks for private information about them. But she also dismissed complaints of commuters about random searches, instituted after the Sept. 11, 2001, attacks, aimed at stopping terrorists on a ferry 300 miles north of New York City.
Source: Associated Press, "Sotomayor on the issues" , Jul 15, 2009

In some situations, race in some form must be considered

Q: Do you believe affirmative action is more justified in education than in employment? Or do you think it makes no difference?

A: The question of whether affirmative action is necessary in our society and what form it should take is always, first, a legislative determination, in terms of legislative or government employer determination, in terms of what issue it is addressing & what remedy it is looking to structure. The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court. It is firmly my hope, as it was expressed in Justice O'Connor [in the case of] the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation.

Source: Confirmation Hearing, US Senate Judiciary Committee , Jul 14, 2009

1st Amendment protects church's anti-gay funeral pickets.

Justice Sotomayor joined the Court's decision on SNYDER v. PHELPS on Mar 2, 2011:

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).

HELD:Delivered by ROBERTS, joined by SCALIA, KENNEDY, THOMAS, GINSBURG, SOTOMAYOR, BREYER & KAGAN

The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.

CONCURRED: BREYER concurs

The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.

DISSENT: ALITO dissents

The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.
Source: Supreme Court case 11-SNYDER argued on Oct 6, 2010

Women under-represented as managers enough for gender bias.

Justice Sotomayor joined the dissent on WAL-MART v. DUKES on Jun 20, 2011:

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.

HELD: Delivered by SCALIA; joined by ROBERTS, KENNEDY, THOMAS & ALITO

The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof. That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

DISSENTED: GINSBURG concurs in part, dissents in part; joined by BREYER, SOTOMAYOR & KAGAN

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.
Source: Supreme Court case 11-WALMART argued on Mar 29, 2011

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Other Justices on Civil Rights: Sonia Sotomayor on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

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Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 12, 2013