Judge Sotomayor's Legal Record: Equal Protection
July 2009
Judge Sotomayor does not have an extensive record on the constitutional guarantee of equal protection under the law in any context,[1] and the Center did not find any cases in which she evaluated the merits of a sex discrimination claim brought under the Equal Protection Clause. In addition, Judge Sotomayor did not testify about this issue at her confirmation hearing.
But Judge Sotomayor did sit on a Second Circuit panel that issued an unpublished, unsigned summary order reversing the district court's grant of summary judgment against the plaintiffs' Equal Protection claims and remanding for application of the Equal Protection standard for gender discrimination claims.[2] In this case, the panel directed the district court to consider whether "the City's decision to send the five female applicants in the 127-person applicant pool to the panel that included the only woman among 12 examiners may have been substantially related to an important state interest."[3] This formulation is the key articulation of the heightened scrutiny test in place since 1975, although it was further amplified to require an "exceedingly persuasive" justification in Justice O'Connor's majority opinion in Mississippi University Women v. Hogan[4] in 1982 and later in Justice Ginsburg's majority opinion in United States v. Virginia (VMI) in 1996.[5] There is neither any indication that Judge Sotomayor wrote the unsigned summary order, nor any substantive discussion of the standard.
With regard to the rights of gay Americans under the Equal Protection Clause, Judge Sotomayor's record is similarly sparse. In one case she heard as a district court judge,[6] Judge Sotomayor refused to dismiss a prisoner's claim that he had been discriminated against on the basis of sexual orientation during the pendency of Romer v. Evans, which held that Colorado's prohibition of state or local laws that protected against discrimination on the basis of sexual orientation violated the Equal Protection Clause,[7] anticipating that the Supreme Court's decision in that case might "elucidate further the equal protection rights of persons with homosexual, lesbian or bisexual orientation."[8] However, it does not appear that she ruled as a matter of law on whether such discrimination would violate the Equal Protection clause.[9]
In addition, while Judge Sotomayor was a member of the board of PRLDEF, that organization filed an amicus brief in United States v. Paradise,[10] which involved a challenge to a court-ordered affirmative action policy under the Equal Protection Clause.[11] The brief, which was also joined by the Center, argued that the court order, which established that one African American officer be promoted for every white officer promoted at every rank in the Alabama state police force until either 25% of the rank was African American, or the Department of Public Safety developed a lawful promotional procedure, met constitutional muster. The statement of the joint interests of amici stated, in part:
Amici conduct extensive litigation to eliminate employment discrimination, representing employees in both the governmental and private sectors. In some of these cases, courts have entered consent decrees or adjudicated decrees that provide race- and sex-conscious hiring and promotional goals to remedy employers' past discrimination. . . . Although less drastic measures will in many cases be sufficient, some cases, including egregious cases like the instant one, have taught amici that the lingering effects of discrimination cannot always be eradicated without the very sort of race-conscious relief approved below.[12]
It should be noted that the Supreme Court rejected the challenge to the court order, and that, as stated above, Judge Sotomayor testified that PRLDEF board members did not approve amicus participation[13] or read amicus or other briefs,[14] but PRLDEF staff informed the Board that the organization had filed the brief.[15] However, it is fair to state that Judge Sotomayor was a board member of an organization that advocated for affirmative action protections.
[1] As a district court judge, Judge Sotomayor wrote decisions in a number of cases that dealt substantively with Equal Protection claims, but all involved rational basis review. Those claims arose in a variety of contexts (for example, challenging election board procedures, prison policies banning Santeria beads but not rosaries, bar examiners' allowance of accommodations for learning disabled test takers, and the federal hostage taking statute's distinctions on the basis of alienage), but none addressed discrimination on the basis of gender. In none of these decisions did Judge Sotomayor's Equal Protection analysis raise any concerns.
[2] Amador v. City of Hartford, 2001 WL 1313747 (C.A.2 ( Conn.)), unpub'd.
[3] Id. at *2 (emphasis added).
[4] 458 U.S.n> 718, 724 (1982).
[5] 518 U.S. 515 (1996) (holding that official action denying rights or opportunities based on sex will receive "skeptical scrutiny" from the courts; that the burden of justifying such action is "demanding and it rests entirely on the state;" and that the state must show an "exceedingly persuasive justification" for all gender-based classifications). (Emphasis added).
[6] Epps v. Comm'r of Correctional Svcs., 1993 WL 213035 (S.D.N.Y.)).
[7] 517 U.S.n> 620 (1996). The Supreme Court struck down the amendment as a violation of the Equal Protection clause.
[8] 1993 WL 213035, at *1.
[9] At Judge Sotomayor's confirmation hearing before the Senate Judiciary Committee related to her nomination to the Second Circuit in 1997, she stated that the case went to trial, and that the jury found for the defendant prison system. Transcript, Hearing of Sonia Sotomayor for Circuit Court Nomination, Sept. 30, 1997, available at http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/Question-12-d-No-5-3-17-94-women-in-the-judiciary.pdf).
[10] 478 U.S.n> 501 (1987).
[11] Brief for the Lawyers' Committee for Civil Rights Under Law, the American Civil Liberties Union, the American Jewish Congress, the Mexican American Legal Defense and Educational Fund, the National Association for the Advancement of Colored People, the National Women's Law Center, the Puerto Rican Legal Defense and Education Fund, Women Employed, and the Women's Legal Defense Fund as Amici Curiae in Support of Respondents Phillip Paradise, et al., United States v. Paradise, 478 U.S. 501 (1987) (No. 85-999), 1986 WL 727620.
[12] Id. at *3-4. PRLDEF's individual statement of interest provided that PRLDEF "is a national organization dedicated to protecting and furthering the civil rights of Puerto Ricans and other Hispanics." Id. at *3.
[13] Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 16, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/07/16/AR2009071602193.html.
[14] Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?_r=1&ref=politics.
[15] Puerto Rican Legal Defense and Education Fund, Inc., A History of the Litigation 1982-1987, available at http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/Doc-36-LitHx1982.pdf.