Last week, we analyzed cases from the Second Circuit, in which Sonia Sotomayor had some part in deciding, addressing the right to free expression.
Still the Supreme Court’s role, and Sotomayor’s judicial style make it difficult to make a broad statement about how she will decide on free expression issues in the years to come.
Court of Last Resort
The Supreme Court of the United States (aka “SCOTUS”) serves as the court of last resort. This means that cases have already been tried and appealed by the time they reach SCOTUS. The losing party from a case’s appeal, interested in one more chance to be heard, will submit the case to SCOTUS for consideration. The justices then review the case in order to determine, not so much whether the appellate court applied the law to the facts correctly, but whether the case addresses issues where the law is still unclear. SCOTUS decides to hear very few of the cases it receives for review. For instance, the matter of Wisniewski v. Bd. of Educ., a case that addresses whether a school has the authority to punish a student for off campus Internet expression, was rejected by SCOTUS.
Sotomayor has been described by many commentators as a judicial minimalist. Jeffrey Rosen, writing for the New York Times Sunday Magazine, described the judicial style this way
minimalism is … principled. It urges judges to issue opinions that focus closely on the particular circumstances of the case at hand, steering clear of sweeping pronouncements about liberty, equality or justice. By so doing, the theory goes, the courts can avoid getting too far ahead of the will of the people and their elected representatives, and preserve judicial legitimacy in the process.
Sotomayor’s opinions from the Second Circuit evidence this close focus, applying existing case law to the particular set of facts at hand.
This minimalist style precludes her from being a free speech absolutist (a free speech absolutist would have written a dissenting opinion in Doninger). Nevertheless Sotomayor’s command of the First Amendment and free expression jurisprudence is strong. For instance, in her dissent in Pappas v. Giuliani, she identifies “the centrality of First Amendment freedoms in our lives” before launching into an exacting match up of laws to facts.
But as I said, she is not a free speech absolutist. She upholds free speech protections because they are already in place, and the parties interested in suppressing or minimizing those rights are not providing her with fact specific reasons to change this precedent.