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Precedents

Sotomayor’s original intent.

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As Sonia Sotomayor takes her seat for her first term on the Supreme Court, what can we expect? Her stolid performance at confirmation hearings this past summer went exactly as planned, and as modern precedent demands; with the job hers to lose, she revealed, essentially, nothing. The best efforts of the epithet chorus on showbiz cable—she was “racist” (Glenn Beck), “reverse racist” (Rush Limbaugh), “anti-white” (Pat Buchanan), “radical” (Sean Hannity), or a member of the “Latino KKK” (Tom Tancredo)—didn’t stick, nor did the reflexive charge that she was a judicial activist “out of the mainstream.” In fact, the new justice, says Corey Yung of the John Marshall Law School in Chicago, is “less activist than the average judge.” On a circuit court known for unanimity and consensus, according to Susan Liss of NYU’s Brennan Center, “Judge Sotomayor has agreed with her colleagues more than most.”

Those on the right or the left looking for Sotomayor to be something she’s not should realize that her temperament has been consistent her whole life. Charles Auffant was a classmate of hers through eighth grade at Blessed Sacrament School in the southeast Bronx. Like the justice, he was a second-generation mainlander from a working-class Puerto Rican family. Like her, he lived in the neighborhood’s public-housing projects, then a well-maintained haven of stability. Auffant recalls Sotomayor as a tall, thin, quiet girl, smart and remarkably self-disciplined: “If you’re a juvenile diabetic, you have to approach life with a certain seriousness and rigidity—otherwise, you’re going to become ill.” Young Sonia was not one to cross a mean-eyed nun, or clamor to get called upon, even when she knew the right answer. “She never lorded her intelligence,” Auffant says. “She tried not to stand out.”

Not long before they left Blessed Sacrament in 1968, Auffant founded an after-school club for students to hear and dissect the popular songs of the day. One day, the club took on a Beatles’ lyric from Sgt. Pepper’s Lonely Hearts Club Band. “We were all coming up with these deep philosophical analyses,” says Auffant, now an associate professor at Rutgers School of Law–Newark. “And Sonia said, ‘You know, we really can’t tell what that song means. We need more facts.’ ” Jack Webb had crashed the club meeting; all the fun drained out. “We didn’t meet much after that,” Auffant says. “The quest for more facts put a damper on our ability to fantasize.”

Down the road, Auffant would follow Sotomayor’s fast-tracked, Establishment-leaning career from Yale Law to the Manhattan district attorney’s office, then a Madison Avenue commercial firm, then a nomination (by Bush the Elder) to the federal bench at age 37. None of it surprised him. “She has never been a rebel,” Auffant says. “That’s just not who she is.” When they were in the eighth grade together, “the world was on fire. We knew that everything was wrong and everything was bad—some of us did. Some of us needed more facts.”

Thanks to the Supremes’ incredible shrinking docket, we’re unlikely to know a whole lot more about Sotomayor come next spring. There is no abortion case on tap this term, no civil-liberties litmus test. The Court will rehear Citizens United v. Federal Election Commission and decide whether Hillary: The Movie—a hit-and-run from a right-wing nonprofit—should be exempt from campaign-spending laws, potentially voiding future congressional regulation in the corporate sphere. That’s the big one. Also slated are a relatively narrow Second Amendment case and a challenge to an anti-terror law that some say infers guilt by association, and, in Maryland v. Shatzer and Florida v. Powell, the Court will weigh moves to dilute a suspect’s Miranda rights. To the extent that there’s any “book” on Sotomayor, it’s that she leans to the left on civil liberties but to the right on criminal law. Her votes on those two cases could be a small tell for larger issues to come. In the meantime, we’ll just have to wait for more facts.

Have good intel? Send tips to intel@nymag.com.


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