By Robert Schlesinger, Thomas Jefferson Street blog
One of the sillier attacks on Sonia Sotomayor is that some large proportion of her decisions has been overturned by the Supreme Court. She has, some conservatives breathlessly report, been overturned by the court 60 percent of the time. That seems pretty high, right?
Not so much.
Keep a couple of things in mind. First, that the 60 percent is literally three out of five cases—not exactly a huge sample size with which to work, Nate Silver points out. More importantly, he observes:
But secondly, a 60 percent reversal rate is actually below average based on the Washington Times' criteria. According to MediaMatters.org, the Supreme Court typically reverses about 75 percent of circuit court decisions that it chooses to rule upon.
The reason that the reversal rate is so high, of course, is that the Supreme Court has a lot of discretion about which cases it chooses to review and rule upon, and is generally not going to be inclined to overturn law dictated by a lower court unless the legal reasoning is substantially questionable and has a strong chance of reversal. The better metric would probably be the number of decisions that the Supreme Court overturned out of all of Sotomayor's majority opinions — whether the Court elected to review them in detail or not.
He goes on to quote SCOTUSBlog as saying that she has authored the majority opinion in 150 cases, putting the total reversal rate at 2 percent.
But the numbers can't even tell the whole story. The suggestion that judges' competence can be quantified simply by the rate at which the court overturns or supports their opinions is, well, dumb. Reversals could well be indicative less of judicial competence than a philosophy out of step with the high court. Or rather out of step with the majority on the high court.
This is from the SCOTUSBlog post Silver linked to:
Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases. To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed. In those two cases (and likely the third), Sotomayor's opinion was rejected by the Supreme Court's more conservative majority and adopted by its more liberal dissenters (including Justice Souter). Those outcomes suggest that Sotomayor's views would in many respects be similar to those of Justice Souter.
The whole reason we get so worked up about Supreme Court appointments is that how the court interprets the law is malleable. It rarely changes in a sharp swerving way, but the ebb and flow of philosophy does change. So a decision that would be reversed today may stand at a later date, or vice versa. To suggest that a reversal is indicative of judicial ineptitude is to suggest that the one to four sitting Supreme Court justices who dissent in non-unanimous cases are likewise incompetent.
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