- The Washington Times - Wednesday, June 3, 2009

It’s no secret that the U.S. Supreme Court often shows a deep philosophical divide, 5-to-4, on cases of the greatest magnitude. It thus should raise eyebrows to know that the high court’s justices once voted unanimously to slap down an opinion written by the very judge, Sonia Sotomayor, who has been nominated to join their ranks.

In the 2006 case of Merrill Lynch v. Dabit, all eight voting justices ruled that Judge Sotomayor had ignored or misconstrued a whole line of cases, stretching all the way back to 1971. (The ninth seat was unfilled, awaiting the confirmation of Justice Samuel A. Alito Jr.) Judge Sotomayor erred in favor of what should be described as Jackpot Justice Inc., otherwise known as the group of plaintiffs’ attorneys most prone to lawsuit abuse.

It wasn’t one of the conservatives who wrote the decision overturning the ill-considered opinion that Judge Sotomayor had written for the 2nd Circuit Court of Appeals; the author was a fellow liberal: Justice John Paul Stevens. Liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter all joined the more conservative Antonin Scalia, Clarence Thomas, John G. Roberts Jr. and Anthony M. Kennedy in what can only be described as a judicial version of a smackdown.

The case involved a rather dry analysis of securities laws rather than issues most of the public would recognize as crucially important. It’s also true that fair examinations of Judge Sotomayor’s whole record would show several cases in which she sided against the plaintiffs’ bar so often favored by liberals. Nevertheless, her reading of this particular case was tendentious enough to suggest she was trying to make policy in favor of plaintiffs rather than dutifully follow precedent.

We need not get lost in the details of the case, which centered on an attempt to file a class-action suit in friendly state courts rather than federal court. Congress had acted wisely to pre-empt such misuse of state courts on cases involving the stock market because, as the Supreme Court noted, “the magnitude of the federal interest in protecting the integrity and efficient operation of the market for nationally traded securities cannot be overstated.” The high court noted that Congress had clear authority to try to “deter or at least quickly dispose of those suits whose nuisance value outweighs their merits.”

The court also wrote that on interpreting the key clauses of the law, any ambiguity had long been resolved. Further, the proper interpretation flows directly not from complicated legal precepts but from “ordinary principles of statutory construction.”

In short, this was not a particularly difficult case. Judge Sotomayor was way out in left field on this one. Her decision was an example of judicial activism of the sort that led her to write in a 1996 Suffolk University Law Review article that only judges and juries, not legislators, have the right to place “limits on jury verdicts in personal injury cases.” The assertion is ludicrous.

Given her history of activism, the Senate should question whether Judge Sotomayor can apply existing law faithfully and well. The Supreme Court already has ruled against her.