Wednesdays on the Steps – First Supreme Court Opinion By Sotomayor

Published Thu, Dec 10 2009 8:54 AM

I was at the press conference regarding ACORN held by Representatives Bachmann, King and Royce yesterday and was unable to post my usual Wednesday Supreme Court piece. It's a day late, but it's one that's definitely worth taking a look at.

When selecting Sonia Sotomayor for the Supreme Court President Obama noted he was looking for someone with empathy. I suppose that's a keyword for someone who would look beyond the law and divine an answer based on thoughts and feelings.

We're about two months in to Justice Sotomayor's first term and we've received the Court's first wave of opinions for the term. Among them is the first Supreme Court opinion authored by Justice Sotomayor. She wrote the opinion in Mohawk Industries v. Carpenter. The case dealt with timing of appeals regarding trial court rulings on attorney client privilege. In a unanimous decision the Court found:

"Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings," she wrote, "would unduly delay the resolution of district court litigation and needlessly burden the courts of appeals."

At one point however Sotomayor arguably looked outside the law and imposed a values judgment. Justice Thomas declined to join Sotomayor in her weighing the "likely" costs and benefits of allowing these appeals. Justice Thomas notes:

I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit—effectively, predictably, and in a way we should have done long ago—the doctrine that, with a sweep of the Court's pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.

While we're looking at the opinion it's interesting to note that Sotomayor has replaced the term "illegal immigrant" with "undocumented immigrant." The NY Times reports that this is the first use of the phrase in a Supreme Court opinion.

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