Sotomayor: The Record

This is one of the things I love most about blogs: Barack Obama nominates Sonia Sotomayor to the Supreme Court; I, a non-lawyer, wonder what her record is like, and find the summaries in newspapers much too shallow and focussed on the politics of her appointment rather than her record; but voila! SCOTUSBlog has anticipated my every whim by running a series summarizing a whole lot of her decisions. The first one has gotten some attention, but there are more! (1, 2, 3, 4.)

They are really worth reading, especially if you are not a lawyer, since they’ll give you a much richer sense of the kinds of decisions she has made than anything I’ve read so far in newspapers. To pick one example: you’ll have a much more informed response to the idea that Judge Sotomayor will reflexively support the interests of minorities if you know about her dissent in Pappas v. Giuliani, which SCOTUSBlog summarizes as follows:

“One of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving 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 and 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 “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech it does not like.” In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.””

It’s worth noting that the speech in question is genuinely offensive:

“The fliers asserted white supremacy, ridiculed black people and their culture, warned against the “Negro wolf… destroying American civilization with rape, robbery, and murder,” and declaimed against “how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews.”

If you read Sotomayor’s actual dissent, she makes very good points. While I am not qualified to say whether it’s a valid legal argument, it is a subtler and (to my mind) deeper take on the relevant issues than that in the majority opinion. The justification for firing Pappas was the damage it would do to the NYPD’s mission if it were known that one of their employees was mailing such racist screeds. Sotomayor notes, correctly, that this is often a good reason for firing someone: if, for instance, a beat cop held such views, one might legitimately worry about how he might treat any African-Americans or Jews he happened to encounter.

But Pappas was not a cop on the beat, a police commissioner, etc. He worked on the NYPD’s computer systems. Moreover, he mailed the offensive literature anonymously, on his own time, and it took a police investigation, involving sending more charitable appeals out in special coded envelopes, to show that he had sent it. But besides making those points, Sotomayor also said this:

“The majority’s core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get “out into the world” that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly. (…)

This case differs from others we have confronted in a critical respect. In the typical public employee speech case where negative publicity is at issue, the government has reacted to speech which others have publicized in an effort to diffuse some potential disruption. In this case, whatever disruption occurred was the result of the police department’s decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions. Ante, at 147-48. The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially… disrupt the government’s activities.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998). This is a perversion of our “reasonable belief” standard, and does not give due respect to the First Amendment interests at stake.”

Or, in short: the NYPD claims it has to fire Pappas because if word got out that they employed someone with his beliefs, that would hurt their ability to do their job. But they were the ones who first investigated these anonymous mailings, figured out who had sent them, and then publicized the fact that it was an NYPD employee. That makes it hard to argue that it was Pappas’ mailing offensive stuff that harmed the NYPD: but for the NYPD’s own actions, that harm would never have occurred. (It reminds me of someone I used to work with: when our college reached decisions he didn’t like, he used to foment huge pseudo-controversies about them and then say: we can’t go ahead with this; it’s just too controversial!)

This is a really good point. As I said, I’m not competent to say whether it is or is not the best reading of the Pickering test, but I do think it’s a subtler analysis than the majority’s, and one that takes the First Amendment issues more seriously, and engages more seriously with the underlying rationale behind curtailing them. More to the point, however, knowing that in a case like this, where political correctness was plainly on the side of the majority, Justice Sotomayor was in dissent. And whether she was right or wrong, this case is worth knowing about, given how often we’re likely to hear that she is all about identity politics at the expense of the rule of law.

And that’s just one example. The whole series is worth reading.

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