Sotomayor (pt I)

I've seen a lot of back and forth on Sotomayor. Let me state that at the outset, I'm a bit worried. She'll be an ideal Souter replacement- centrist (hopefully leftist). She was appointed by Bush1, Clinton, and on the short list of Bush2 appointees. And everyone is arguing back and forth over everything, already...

So, screw it, I'm going to take a look for myself.

First, to clarify my starting position:

She's kinda a non-entity, most people seem to agree that she's never really made any big precedence forming cases. Which, apparently, isn't unusual for an Appellate Court Justice. She is, almost certainly, a centrist. Souter is also a centrist, though he's considered part of the liberal wing. I'm very interested in her confirmation hearings, and I'm not very hopeful. (She's Catholic- the sixth on the current court- the Bushes loved her, and she ruled for the Church in Methodist v Old Dude.)

Today's (first?) review:
Centers for Reproductive Law and Policy v Bush (2002)


They dismissed the case, but for different reasons than it was originally dismissed. There's precedence in her reasoning. Here are the important bits:

On 1st Amendment:
+ "The crux of plaintiffs' First Amendment claim is their contention that the restrictions chill foreign NGOs from collaborating with domestic NGOs like CRLP because such collaboration may be viewed as promoting abortion and thus would jeopardize the foreign NGOs' receipt of U.S. government funds. Plaintiffs argue that such collaboration is essential to their ability to carry out their mission as advocates of reproductive rights and that depriving them of this ability violates their freedom of speech and association."
+ "In reaching its conclusion, the court relied heavily on our analysis in [Planned Parenthood Federation of America, Inc. v. Agency for Inter-national Development]."
+"Our outcome on the merits is thus "foreordained" by Planned Parenthood. Under the Norton/Airec/i exception acknowledged in Steel Co., we need not reach the academic question of Article III standing in this case."

{Which is them saying, essentially, "we can bypass the hard question of jurisdiction because there's already precedence on the merits, and we reject the merits, just as we did in Planned Parenthood."}

On Due Process:
+ "Because Planned Parenthood did not address due process claims brought by domestic NGOs in this context, we address the due process claim separately and dismiss it on the alternative ground of prudential standing."
+ "Plaintiffs' claims do not fall within the "zone of interests" protected by the Due Process Clause. "
+ "It is not the plaintiffs, however, who are allegedly left uncertain of their rights by unconstitutionally vague language in a government provision; it is the foreign NGOs who are allegedly left in this position. Plaintiffs' harm is derivative of this due process-type harm, and their alleged injury (albeit an unactionable one) concerns First Amendment interests. Plaintiffs' allegation, simply put, is that the vague language of the Standard Clause causes the foreign NGOs to be overly cautious in avoiding interaction with plaintiffs, which in turn harms plaintiffs' speech and association interests. On appeal, plaintiffs expressly acknowledge that "[t]his vagueness claim is premised on the [restrictions'] chilling effect on protected speech and association." As plaintiffs do not assert a harm to their own interest in receiving due process of law, this is precisely the sort of claim that the prudential standing doctrine is designed to foreclose. Plaintiffs cannot make their First Amendment claims actionable merely by attaching them to a third party's due process interests. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809 (D.C.Cir. 1987) (explaining that because due process rights "do not protect a relationship" between a third party and a litigant, a plaintiff "could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court")."

{The Plaintiff is saying "our rights are harmed because of ambiguity causing foreign NGOs to not interact with us." The court says "Too bad. You can bring suit over your rights, but you can't bring suit over someone else's rights. Therefore you don't have 'prudential standing' under Due Process."}

On Equal Protection:
+ "Plaintiffs argue that the district court failed to undertake a separate analysis of their Article III standing to bring an equal protection claim. Because we agree with plaintiffs that the case law regarding constitutional standing for equal protection claims is distinct, and because Planned Parenthood does not foreclose this claim on the merits, we address the question of Article III standing with respect to this claim."
+ "Because this classification "neither proceeds along suspect lines nor infringes fundamental constitutional rights," it must "be upheld against equal protection challenge if there is any reasonable state of facts that could provide a rational basis for the classification.""
+ "The Supreme Court has made clear that: the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

{Essentially, the Court said: "You have standing, here; but because The SCUSA has said this behavior of favoritism is okay, precedence says we have to dismiss this claim because you have no merit."}


My Conclusion:
Doesn't tell us much. The Plaintiff was doomed from the get go because of how similar their case was to one brought by Planned Parenthood, to the same Court, in 1998 (4 years earlier). The precedence is from how standings and merits questions were resolved- which disagreed with why the case was dismissed; but not the dismissal. In other words, it's very appellate-like. I will say she did seem to consider the case and not just trumpet the governmental position over or above the plaintiff. In my opinion, that's a good thing.