"Juan Antonio Santacruz says he has sold quite a few tacos to Sotomayor, who frequents his Mexican restaurant, Tacos El Chilango."

"Chix and the Greek Spot are two other neighborhood restaurants Sotomayor has patronized.... Sotomayor sometimes stops by the Greek Spot after work to order the gyro platter, the owner says...."

A WaPo slideshow answering the question how Justice Sonia Sotomayor — who lived in the West Village when she was a federal judge in NYC — is adapting to the "distinctive rhythms" of the neighborhood where she lives in Washington. ("Distinctive rhythms" — is that politically correct? ) Here's the related article:

“U Street is the East Village,” said Sotomayor, who keeps a place in Manhattan’s West Village. “The East Village has been developing in the last 10 or 15 years, and I’ve often said if I was going to buy an apartment now, it probably would be in the East Village. So what did I do? I came to Washington and established a home in the East Village.”

If Sonia Sotomayor's autobiography has nothing at all about law or even politics...

... why would anyone read it?

The book, which covers her life prior to becoming a judge, barely says a word about the Constitution and even less about ideology. Yet one doesn't get the sense that politics were scrubbed from the text; it is rather that the topic isn't of much interest to the author.

That's what a good scrubbing job would do. So there's no bad scrubbing job leaving interesting residue.

One wishes she had shared her intellectual interests with us or discussed the books that captured her fancy or influenced her thinking, since she remarks more than once in "My Beloved World" that the library was a refuge for her as a schoolgirl and later at Princeton. Disclosing the names of books that influenced a childhood wouldn't compromise pending or future cases.

Welcome to the post-Bork world — a "beloved" world? — where judges are dutiful, neutral case processors. The very quality that makes a judge the kind of judge we've come to require — post-Bork — will embody a form of expression antithetical to a good memoir.

Sotomayor, the college years.

One slide in a long, narrated slideshow at NPR.com. I picked that one out because it's so different from the others and from every other photo I've ever seen of Sotomayor. NPR did the article to go with Justice Sotomayor's new autobiography, "My Beloved World."

What is Drudge trying to say about Sonia Sotomayor?

This is at the top of the right-hand column at Drudge this morning:



Now, as we saw last night, what Justice Sotomayor did was deny an emergency injunction. That would have required a finding that "the legal rights at issue are indisputably clear," which clearly, they are not. And her opinion never mentions "morning-after" pills, only contraception, generally. (The challenged HRSA’s guidelines refer to "all Food and Drug Administration . . . approved contraceptive methods.")

With that rather strange photograph and the reference to "morning-after," I've got to infer that Drudge intended sexual humor aimed at the Justice. I think the photograph was chosen for the "bedroom hair" and the groggy eyes. Or do you focus on the hand? Does it seem to be tossing pills at us?

"The Supreme Court on Wednesday refused to block the Obama administration's contraception mandate from taking effect."

"Justice Sonia Sotomayor rejected a request for an emergency injunction that would have shielded employers from the mandate."

Opinion: here:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.

That detail from Sonia Sotomayor's wedding night.

Seemingly the juiciest item in her new autobiography:

She married her high school sweetheart, Kevin Noonan, soon after they graduated from college.... [O]n their wedding night, Noonan produced a bag of Quaaludes that was a gift from his friends. She insisted he flush the pills down the toilet.

The book — not out until January — is called "My Beloved World."

Here's "Sonia Sotomayor: A Judge Grows in the Bronx / La juez que crecio en el Bronx" — the children's book version of her up-from-poverty story. Illustrated, inspiring, and drug-free.

"A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court..."

"... on Monday, but not one quite as steep as many had anticipated," observes Adam Liptak at the NYT.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea....

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked....

Justice Antonin Scalia [said] “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court... That just proves that under our system of separated powers, it is none of our business.”

Here's the transcript.

"All Stephanie [Cutter] wants is results."

"She is an old-school, take-no-prisoners political operative. Losing is not tolerated."

In her role as Mrs. Obama’s chief of staff during the 2008 campaign, Ms. Cutter (who signed on after Mrs. Obama’s widely publicized comment that “for the first time in my adult lifetime, I’m really proud of my country”) is largely credited for turning the would-be first lady from a potential liability to an enormous asset....

In addition, Ms. Cutter helped develop “Let’s Move!,” Mrs. Obama’s childhood-obesity initiative, and prepared Sonia Sotomayor for her Supreme Court confirmation hearings. Ms. Cutter’s prep work involved not only peppering Ms. Sotomayor with sample questions and overseeing media coverage, but also taking on the more delicate task of asking Ms. Sotomayor to tone down her giant dangly earrings.

“She has an attention to detail that builds huge confidence on the part of the people she works for and, I say this parenthetically, especially women,” said Anita Dunn, Mr. Obama’s former White House communications director.

Women. Advancing. Right?

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:

The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 

See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.

The Supreme Court's new double jeopardy case divided 6-3 on gender lines: was this "some sort of gender-related 'empathy'"?

Lawprof Mark Tushnet wonders, noting the dissent limited to the 3 female Justices — Ginsburg, Kagan, and Sotomayor — and expressing the belief that "this is the first case in which the Court has divided along gender lines." I don't think he's taking account of instances when Justice O'Connor (or Justice Ginsburg) was the only woman on the Court and dissented alone. It is striking to see the 3 women segmented off, but really, what is the big deal? They are the liberal wing of the Court, so it's just a matter of whether or not Justice Breyer joins them. I suppose one might wonder whether there's something male about Breyer's defection from the usual group of liberals.

The case in question, Blueford v. Arkansas, found the 3 women championing the rights of a man accused of murder after a 1-year-old boy died of a severe head injury while in his care. Nothing particularly appealing to females there, as Tushnet notes.

Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)

Tighter?! I hope that's not a gender-related notion, professor. I've read both opinions, and I think the Chief Justice's majority opinion is plenty tight.

Anyway... neat to have the Court line up along gender lines. Tushnet can imagine Kagan thinking that. I can't.  (And why is Kagan running the show? It's Sotomayor's opinon.)

"This case demonstrates that the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases...

"... has not waned with time. Only this Court’s vigilance has." 

So ends the dissenting opinion in Blueford v. Arkansas, written Justice Sotomayor and joined by Justices Ginsburg and Kagan. It's quite an interesting double jeopardy problem, where a mistrial was declared after a report from the jury that there had been a unanimous vote of not guilty on the capital murder charge and the first degree murder charge.

The jury got hung up at the manslaughter charge. As Chief Justice John Roberts wrote for the majority, the jurors were instructed to decide one charge at a time and only to move on to consider the next, lesser charge after they'd found the defendant not guilty on the more serious charge. Roberts writes that despite the report from the jury, mid-deliberation, that revealed that there had been a unanimous not guilty vote on the 2 highest charges, he hadn't been "actually acquitted" of them.

The foreperson’s report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses....

But even if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense—as the State assumes for purposes of this case, see Brief for Respondent 25, n. 3—nothing in the instructions prohibited the jury from reconsidering such a vote. The instructions said simply, “If you have a reasonable doubt of the defendant’s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].” App. 51–52. The jurors were never told that once they had a reasonable doubt, they could not rethink the issue....

"No part of your argument has to do with racial or ethnic profiling?" asked Chief Justice Roberts, and the SG agreed.

The Arizona immigration case is emphatically not about the issue that seems to be all people opposed to the law argue about in the political sphere.

As in the Affordable Care Act case, it was Solicitor General Donald B. Verrilli and former Solicitor General Paul D. Clement arguing on opposite sides. Unlike in that case and because the law under attack is a state law, Verrilli is arguing against the choice of the democratic majority, and Clement is arguing to uphold it.

Mr. Clements [sic] said the state was making an effort to address an emergency situation with a law that complemented federal immigration policy. “Arizona borrowed the federal standards as its own,” he said.

Mr. Verrilli countered that Arizona’s approach was in conflict with the federal efforts. “The Constitution vests executive authority over immigration with the national government,” he said.

That is, it's a federalism case, not a constitutional rights case. The question is the allocation of power between the federal and state government. (The Affordable Care Act case is also a federalism, and not a rights case, even though in the political sphere, people opposed to the individual mandate concentrate on the imposition on the individual, not misallocation of power as between the federal and state governments.)

“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

Chief Justice Roberts said the state law merely requires that the federal government be informed of immigration violations and leaves enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not,” he said....

Chief Justice Roberts, writing for four of the justices in the majority, said the state law under review “simply seeks to enforce” a federal ban on hiring illegal workers. “Arizona went the extra mile,” he wrote last year, “in ensuring that its law closely tracks” the federal one.

That was from the Adam Liptak article in the NYT. Here's Lyle Denniston at SCOTUSblog:

In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally.  And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active....

The Court’s three more liberal Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — offered what appeared to be a less than enthusiastic support for the federal government’s challenge....

Kagan has recused herself, by the way. It seems rather obvious that Arizona will win this case. The first quote in Liptak's article is Sotomayor saying to Verrilli: "You can see it’s not selling very well."

A torture victim cannot sue the Palestinian Authority and the Palestinian Liberation Organization under the Torture Victim Protection Act of 1991.

Says a unanimous Supreme Court, in an opinion (PDF) written by Justice Sotomayor. Sotomayor — why, by the way was nominated by a President who said was looking for a Justice with "empathy" — explained that the statute created a claim against "individuals," and that word only includes natural human beings and not artificial entities.

And no one, we hazard to guess, refers in normal parlance to an organization as an “individual.”...

Congress does not, in the ordinary course, employ the word any differently. The Dictionary Act instructs that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U. S. C. §1 (emphasis added). With the phrase “as well as,” the definition marks “individual” as distinct from the list of artificial entities that precedes it.

In law, it's the norm to see an organization as a "person," but not as an "individual."

ADDED: My post title, picking up language in the case syllabus, says "Palestinian Liberation Organization" when the real name of the defendant is "Palestine Liberation Organization." The same error appears in Sotormayor's opinion for the majority and Breyer's concurring opinion.

When it comes to the Obamacare case, you just can't lose.

Let me state the obvious and not belabor it: Whoever loses will easily and powerfully leverage that loss in the political arena.

If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:

1. I brought you a wonderful solution to a terrible problem. (What he won't say: It would have been a disaster, and fortunately, you will now not need to experience it and see that it was not wonderful, but terrible.)

2. My opponent has been arguing for months and months that you need to elect him to get Obamacare repealed. The Supreme Court already did that work, so that major issue is gone. Move on!

3. There are 5 activist conservatives on the Supreme Court, and if you elect a Republican, by the end of his term, there might be 7. The Court will skew far right, destabilizing the law as we know it. There is a great danger here that you must guard against by keeping me in the position to nominate the next Supreme Court Justices and thereby to rebalance the Court.

If Obama wins, the GOP candidate — presumably Mitt Romney — will be able to say:

1. Obamacare is a terrible disaster looming and bearing down on us. You may have thought the Supreme Court would save us from this dire consequence, but it did not. Alarm! Alarm!

2. The Supreme Court left this matter to the political processes, and it is therefore imperative that the political process work — by electing me — to make a repeal possible.

3. There are 5 activist liberals on the Supreme Court, including the 2 liberal Justices chosen by Obama to rubberstamp his liberal agenda. If you reelect Obama, by the end of his second term, there might be 7. The Court will skew far left, destabilizing the law as we know it. Do you want Kagan II and Sotomayor II joining the Court? You must elect me to restore balance.

ADDED: I think that a loss for Obama would be so politically advantageous for him that he might prefer it. Here's where I play with the idea that he's secretly trying to lose, and that's why the SG's argument yesterday was so bad.

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

Only 28% of likely voters rate the Supreme Court "excellent" or "good."

This is the lowest Rasmussen has recorded (since it began tracking this question in 2006.)

Voters from all party affiliations give the Supreme Court similar ratings, but Democrats and unaffiliated voters give slightly higher negatives than Republicans do.

Overall, 33% believe that the Supreme Court is too politically liberal, while 28% say it is too conservative. Nearly as many (25%) say the ideological balance is about right. Another 14% are undecided. Most GOP voters (56%) think the court is too liberal. Most Democrats (54%) say it's too conservative. Unaffiliateds are more narrowly divided.

Ha ha. I find that breakdown funny. It makes me say the Supreme Court is actually doing just fine. Everybody wants it to skew more toward their politics? They don't deserve what they want.

A plurality of all voters (43%) believes the two justices nominated by President Obama are too liberal, showing little change over the past few months. Only seven percent (7%) regard Justices Sonia Sotomayor and Elena Kegan as too conservative, while 36% say their ideologies are about right. Fourteen percent (14%) are undecided.

Fifty-one percent (51%) of politically moderate voters and 65% of liberal voters believe the ideologies of both justices are about right, while most conservatives (75%) believe they are too liberal.

See what I mean?

Now, given that very moderate opinion about the Court generally, it's interesting to see that 69% of voters say that government lacks the constitutional power to require individuals to buy health insurance.

"Hey, I heard that there was a Supweem Court Justice on 'Sesame Street.'"

"There is, Baby Bear. There is."/"Hi, Baby Bear. I am Supreme Court Justice Sonia Sotomayor, but you can call me 'Justice."



"Wow! Impwessive!"

ADDED: Let's talk about the particular legal problem the "Sesame Street" folks used to teach kids law. Baby Bear has a complaint against Goldilocks, who entered his house and sat in his chair, breaking it. Justice Sotomayor, after listening to Goldilocks, notes that Goldilocks didn't intentionally break the chair, and the dispute is resolved by having Goldilocks help Baby Bear glue the chair back together. "And the 2 of you can live happily ever after." Baby Bear says "I can live with that," so we could view Sotomayor as proposing a settlement — Baby Bear agrees to it — rather than issuing a legal decision.

Notice the emphasis on conflict resolution and building community. Fine. But I'm not satisfied with the observation that Goldilocks didn't intentionally break the chair. Goldilocks intentionally broke into a private home. Why is there no attention to that? If somebody broke into my house when I was away, I would be outraged, even if nothing were broken. I would also not accept a glued-together chair as an adequate replacement for an unbroken chair.

So "Sesame Street," in classic left-wing fashion, pays no attention to property rights. Also, consider the gender dimension of this problem. If a male had intruded into the home of a female, I don't think "Sesame Street" would focus on how nice it would be if the 2 could now become friends.

"One night at a gathering at an apartment in New York City, a woman blithely announced, 'I would pay someone to have sex with my husband.'"

"There were snorts and yips of laughter. I believe one woman even clapped. 'What did they mean?' I asked my friend. '"Here’s to no sex with our husbands ever again?"' 'Here’s to the end of sex?'"

So begins Meg Wolitzer's NYT article on the (perceived) decline of the (female) sex drive. She notes that people these days have a prurient interest in famous women not having sex:

Think of Supreme Court Justice Sonia Sotomayor or the former Secretary of State Condoleezza Rice. I can picture either woman in a big, beautiful bed with great sheets, the duvet scattered with legal briefs or policy papers. The bedside lamp burns a peachy, erotic glow all night as she works.

So... Wolitzer just identified the prurient interest... and wrote some porn for it!

"Patrol officers responding to a different incident at the Justice Sonia Sotomayor Houses in Soundview caught a whiff of a foul odor..."

"'It's a river of blood coming from the bag...'"

There's one way to have your name in the news.

The Supreme Court takes a global warming case....

... with Justice Sonia Sotomayor recusing herself. American Electric Power Co. v. Connecticut involves the use of a common law theory of nuisance:

[Five companies] that were claimed to be the largest sources of greenhouse gases — four electric power companies and the Tennessee Valley Authority — were sued by eight states, New York City, and three land conservation groups...

Calling the potential impact of the nuisance theory “staggering,” the companies’ petition said that virtually every entity and industry in the world can be found to be partly responsible for some emissions of carbon dioxide, so they are potentially liable to be sued in climate changed nuisance lawsuits.

When it comes to carbon dioxide, we're all a damned nuisance.