I hear it from the right: ZOMG! She ruled against white firefighters who had earned a promotion and in favor of reverse racism!!
I hear it from the left: ZOMG! She ruled against the First Amendment and in favor of schools punishing free speech!!
No, she didn't. And those who claim she did either of those things may know how to read, but they are demonstrating the limitations of their ability to read a court opinion.
For 25 years, ever since beginning the legal career that preceded my current teaching career, I've listened to people argue that it's elitist for lawyers to think those without legal training can't read and understand court rulings.
I understand the feelings behind that argument, but with respect, I'm nevertheless calling BS on it.
It is not elitism. It is recognition that law students spend three years of full-time study learning skills, knowledge, terminology, and analytical techniques to understand the significance, impact, and nuance of court opinions. This specialized education is deemed necessary even though students admitted to law school
- already have bachelors' degrees,
- typically have been very high academic achievers for their whole lives (which means they already have high-level reading comprehension skills), and
- scored well on a standardized test designed to test their capacity for the types of analysis used in the legal field.
Does that mean no one other than lawyers can understand what a legal opinion says? No, obviously the words are English, and general reading skills enable a person to make sense of what those words say.
But it does mean that, in forming an opinion about what a particular ruling signifies -- the scope of its effect as legal precedent, what it says about the judge who wrote the opinion, whether its analysis of legslative intent or common law precedent is expansive or restrictive -- specific legal training (through formal classes or through extensive self-study) develops analytical skills that are helpful in such analysis and are not in the repertoire of a person who lacks specialized training or study, even if that person is intelligent and well-educated.
At no time in my life has this been clearer to me than in reading and listening to the arguments -- on both sides -- about the Sotomayor nomination.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Here's an analogy to illustrate my point:
Suppose that a defendant is on trial for murder. There is overwhelming evidence that he committed the crime in cold blood. But there are a couple of details that cast some small doubt on his guilt. Each of the jurors believes there is about a 90% chance that the guy is guilty. But they take seriously the judge's instructions, which tell them that according to law they must return a verdict of "not guilty" unless the prosecution has demonstrated "beyond a reasonable doubt" that the defendant committed the crime. So after several days of deliberation, they reach a verdict of "not guilty."
If someone doesn't understand how the law works, they might misinterpret this verdict as meaning that the jury believed the defendant did not commit the crime. I would guess that the vast majority of people here on DKos are sufficiently sophisticated in their understanding of our legal system to know the jury's verdict means no such thing.
The words of the verdict say "The jury finds the defendant 'not guilty,'" but we know it really means, "The jury finds that the prosecution has not proven beyond a reasonable doubt that the defendant is guilty."
It could even mean something like,
We really think the guy did it, but we weren't totally positive. We want to know what that evidence was that the judge excluded in that meeting she had with the attorneys in her chambers, because we think that could have been the piece of the puzzle that we felt was missing, the one that would lock it all up and make it possible for us to send this scumbag to prison for the rest of his life. Or maybe if the prosecutor had done a better job of questioning that one witness, the one who was kind of evasive, maybe we could have convicted the defendant. The bottom line is, we're pretty pissed off at the court system, because we really thought this guy was dangerous and we wanted to convict him, but the evidence that we got to see just wasn't quite strong enough for us to be able to confidently say that he did it, not after those instructions the judge read to us.
Those reading newspaper accounts of the trial, or hearing coverage of it on TV, learning about some of the damning evidence against the defendant, might conclude that the jurors must have been stupid or soft on crime if they couldn't figure out that the guy was guilty or were unwilling to convict him.
But the truth is that juries are not responsible for deciding whether a defendant is guilty. They are responsible for deciding whether the evidence presented is sufficient to meet the prosecution's burden of proving the defendant's guilt beyond a reasonable doubt.
++++++++++++++++++++++++++++++++++++++++++++++++++++++
Similarly, it is not true that Sotomayor ruled in the Doninger case to restrict free speech.
Rather, she joined without comment in an opinion written by a different justice holding that the appellant had not shown that the lower court was "clearly erroneous" when it ruled that the moving party had not demonstrated a "clear and substantial likelihood of success" in proving that a student who published false or misleading information, using offensive language, urging community members to engage in actions that did in fact disrupt school operations, was denied her constitutional rights when she was prevented from running for office in an extracurricular organization designed to teach students skills at cooperative conflict resolution, given the fact that after a conference with school officials about how her original commuincations had strayed from those cooperative conflict resolution principles, she then chose to compound the rejection of cooperative conflict resolution by widening the scope of publication of her original communication.
Or looking at it from a slightly different angle, the appeals court ruling which Sotomayor joined in without comment held that if there was any reasonable possibility (even if it was less than a 50% chance) that the school district might ultimately win the underlying action, then under the applicable legal and evidentiary standards, the trial court did not abuse its discretion by refusing to issue a "preliminary injunction," BEFORE the trial, ordering the school to reinstate the student to a student council office.
Either of these analyses is about ten steps removed from the way the import of this opinion has been characterized by some of those expressing "concern" in the leftward portion of the blogosphere.
People have used this single action by Sotomayor to argue that she does not respect First Amendment values. WTF? That would be the equivalent of arguing that our fictional jury, above, not only believes that the defendant didn't do the crime, but thinks laws prohibiting murder should be repealed.
The court opinion in the Doninger case rests on several very specific factual circumstances and very narrow legal grounds. It says nothing about the judges' overall views on the First Amendment. To extrapolate from her joinder in that opinion that Sotomayor will not protect constitutional rights is baseless speculation.