The Supreme Court starts its new session today with a new face on the bench. As Justice Sonia Sotomayor replaces David Souter, the debate over how President Obama's Supreme Court pick will change the court is on. Four predictions.
- Sotomayor No Departure From Souter, The New York Times writes. "A new justice always changes the dynamic of the court, but in
ideologically charged cases, Justice Sotomayor's positions are likely
to be similar to those of Justice David Souter, whom she replaced." The Times argues that Justice Kennedy will continue to have the deciding vote. "Barring any new changes in the Supreme Court's composition, or any
sudden changes of heart among the sitting justices, the law on many
issues is likely to be, as it has been for several years now, what
Justice Kennedy says it is."
- More Conservative Than Souter, Bradford A. Berenson writes at The Washington Post. The former counsel to President George W. Bush says Sotomayor's record and her experience as a prosecutor makes it likely that she's to the right of Justice Souter. "Sotomayor's instincts appear to be more conservative than Souter's in
several areas. She is probably more sympathetic to the holders of
intellectual property rights. With her background as a prosecutor, she
weighs the needs and interests of law enforcement more heavily than he
did. There are indications that she might also be more sensitive to and
respectful of national security concerns than Souter."
- Watch Her Votes on Free Speech Cases, Jonathan Turley suggests at The Los Angeles Times. Turley says it's possible that Sotomayor is more conservative on free speech than Souter was. He says Sotomayor's opinion on cases involving free speech — like an upcoming case related to the McCain-Finegold campaign finance law, for example — will help determine whether liberals have lost ground with her appointment.
Sotomayor will be tested in one of the areas of greatest concern to
liberals -- free speech -- at the very start of her tenure on the
court. Sotomayor was opposed by some free-speech advocates, in part
because of her vote in Doninger vs. Niehoff, in which the appeals court
upheld the right of school officials to punish students for
out-of-school speech -- in what some considered a major blow to both
the 1st Amendment and student rights. Notably, the panel acknowledged
that it was not bound by existing precedent from the Supreme Court in
denying free-speech protections to students.
- Another Catholic Justice. At Politics Daily, David Gibson says the number of Catholics on the court is now, "well out of proportion to the 24 percent or so of the general American population that is Catholic." Does that matter? Gibson says when it comes to issues like abortion, it might. "In 2007, when all five Catholic justices voted in a 5-4 decision in Gonzales v. Carhart to uphold the constitutionality of a federal ban on late-term, or so-called partial-birth, abortions, University of Chicago Law School Professor Geoffrey Stone wrote a blog post, "Our Faith-Based Justices," arguing not only that the majority was dead wrong, but pinning the reason on their religion." Still, he writes, not all Catholics will interpret cases in the same way, and most of the court's decisions will come down to politics.
Some Catholics might take one side (Scalia, e.g.) while others (perhaps Sotomayor) would have another view. In other words, there are Catholics and there are Catholics. How else to explain this coincidence: On April 16, 2008, the day Pope Benedict XVI arrived for a historic visit to the United States, during which he would repeat the church's opposition to capital punishment, the Supreme Court upheld the lethal injection method of execution and all five Catholic justices combined to back a decision that goes against Catholic teaching.
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