Justice Sotomayor Comes to Town

It's not every day that a law school plays host to an Associate Justice of the United States Supreme Court, and this is why Pace Law School pulled out all the stops for Justice Sonia Sotomayor today. Fresh from her appearance on Sesame Street on November 9, Justice Sotomayor spent the day at Pace, meeting with students, faculty, staff, and other members of our community.  Justice Sotomayor had a lengthy question-and-answer session with over 200 students this morning in the moot court room (there were a number of other locations on campus where the event was being broadcast).  All of the students' questions had been prescreened, and certain subjects were off limits, including anything to do with cases currently before the Court and cases that might come before the Court.  This is an understandable restriction which most Justices seem to follow.  When asked about her judicial philosophy, she said she really didn't have one; however, she believes strongly in process, that everyone has the right to be heard. 

During lunch with the faculty, Justice Sotomayor answered more questions, but our questions had not been prescreened.  She told us that her day is spent "Researching, thinking, and writing," and lamented the poor writing skills she sees in many attorneys; this is not much of a problem at the Supreme Court because the attorneys who appear before the Court tend to be a small, elite group, but it was an issue at the Second Circuit.  She said law schools need to do a much better job training students in legal writing, and should focus less on teaching the "law and" curriculum and more on teaching the law and practical skills.  One writing course is not enough; students need as many opportunities to write and to get feedback on their writing as possible.  I don't know anyone who would disagree with that statement; the problem is, of course, that working with students on writing is labor intensive and can usually not be done effectively through large-enrollment courses.  I was also interested to hear her say in response to a question about the future of legal education that no one school can be great at everything.  Law schools should collaborate to diversify their curricula rather than build new programs; schools with specialized curricula should team up with schools that specialize in other areas to enrich both schools' course offerings for the lowest cost.  This is hardly a new idea, but it is one whose time may have come.

Turning to the Court, when asked about the proliferation of concurrences in recent terms of the Court, Justice Sotomayor stated that they resulted from the concurring judges' sense that while the correct result had been reached, the majority had not considered other approaches to achieving the same result.  It is important for the concurring judges to put their views on the record, for the benefit of their colleagues and the public.  When asked about the length of today's Supreme Court opinions, Justice Sotomayor agreed that they tend to be longer than those of the past, but she pointed out that earlier opinions were often marked by a paucity of analysis which makes it difficult for later Justices to interpret them and use them as precedent.  In response to a question about the value of legal scholarship, specifically law review articles, which Chief Justice John Roberts has criticized, Justice Sotomayor said she disagreed; the briefs she receives often include references to law review articles, but the most useful are those that trace the growth and development of an area of the law, in other words, the traditional law review article.  The farther afield legal scholarship goes, the less useful it is to sitting judges who must decide real cases. 

Everyone who met with Justice Sotomayor noted her warmth, intelligence, and engagement with those to whom she spoke.  These are the same qualities the Pace community noted during her visit in 2003 when she was our commencement speaker.  Her goal today was to get to know Pace Law School better, and I think she did. 

A Response to Justice Scalia

Pace Law School hosted the Blaine Sloan Lecture on International Law on Monday, October 4. This year's speaker was the Honorable Michael Kirby, formerly a justice of the High Court of Australia; when he stepped down from the bench in 2009, he was Australia's longest serving justice. More information about Justice Kirby is available here. In addition to Justice Kirby's biography, you will also find a link to a video of the lecture. I thoroughly enjoyed his remarks. In a genial and eloquent manner, he put forth the rationale for judges to review how the courts of foreign countries have looked at the issues that have come before them as a way of informing their own decision-making process; this approach is rejected by Justice Antonin Scalia and the other conservative members of the United States Supreme Court. Justices Scalia and Stephen Breyer have debated the controversial issue of original intent. To hear their debate at the Supreme Court Historical Society, click here.

According to Justice Kirby, the United States created the international system that has existed ever since World War II. In every area of human endeavor except one--the law--the United States is an outward-looking nation and seeks input from other countries. It would be inconceivable for American scientists, physicians, engineers, artists, and writers to cut themselves off from foreign influences, but that is precisely what American judges like Justice Scalia do when they refuse to recognize that foreign judicial decisions might inform their deliberations. This is particularly true when construing an international treaty to which the United States is a party, but is also true when deciding a case involving the United States Constitution. Justice Kirby recognizes that the decisions of other courts would never bind the United States Supreme Court, but they might provide useful insights, especially when they come from other common-law systems. Justice Kirby believes that our Constitution should not remain frozen in the times during which it was written, but can apply to modern situations that its Framers could not possibly have imagined. Justice Kirby's speech is well worth listening to.