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Sonia's Batting Average
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Critics argue the Supreme Court has reversed 60 percent of Sotomayor’s opinions. But Stephen L. Carter says their math is way off—the real number is less than 1 percent.
The confirmation silliness has reached new heights—critics now are springing the “fact” that Judge Sonia Sotomayor, nominated by President Obama to succeed the retiring Justice Souter, has been reversed 60 percent of the time by the Supreme Court. There is no such fact, of course, and no basis for any speculation.
Here’s why.
Over her career as an appellate judge, Sotomayor has authored 380 majority opinions. The Supreme Court has reviewed five, and reversed three—thus the “calculation” of 60 percent.
But this argument ignores the fundamentals of statistics. In the first place, 375 of her opinions were not even deemed worthy of review: That is, either the loser chose not to appeal, or the Supreme Court decided not to hear the case. Thus, by the method of her critics, we should conclude that Sotomayor has been reversed in only three of 375 cases—that is, eight-tenths of 1 percent of the time.
By the method of Sotomayor’s critics, Samuel Alito’s time on the Court of Appeals yields a reversal rate of 100 percent.
Overall, the Supreme Court in recent years has reversed roughly 75 percent of the cases it hears. Thus, even if one accepts the 60 percent figure for Sotomayor, that would put her below the median reversal rate for all federal appellate judges. But, of course, one would expect the reversal rate to be high for most, if not all, judges. After all, if the court thinks the lower court judge is right, it rarely will agree to hear the appeal.
Moreover, the sample suffers from what statisticians call selection bias. Such a bias occurs when the sample you are studying does not reflect the larger population about which you are drawing conclusions. Suppose you wanted to determine what percentage of Americans have had flu shots, and you did your study by dispatching pollsters to hospital emergency rooms across the country and asking each patient if he or she has had a shot. This would not give you any information about how many Americans have had flu shots, because most people do not use emergency rooms very often, and the people who use them are more likely to be very sick or uninsured or both. At best, you would know what percentage of the very sick or uninsured have had flu shots.
The same is true when one tries to figure out whether a judge does or does not follow precedent by studying reversal rates. The Supreme Court has absolute discretion over its docket and takes only the hard cases—those likely to provoke the greatest disagreements. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit once put the point this way: “[N]ot only does the Supreme Court review only a minute percentage of court of appeals decisions, but the cases it does review are not a representative sample of judicial activity in the different fields of federal law.”
A judge might follow the law perfectly in hundreds of decisions that the Supreme Court never hears, but, because panels that hear appellate arguments are drawn at random, she also might be dealt a handful of particularly difficult or unusual cases in which precedent is not a reliable guide. These are the cases the Supreme Court is most likely to review. And we have no way of drawing conclusions about the sample without knowing the complexity of the cases.
To take one example, Judge Sotomayor’s decision in Riverkeeper v. Environmental Protection Agency, concerning cost-benefit analysis under the Clean Water Act, was indeed reversed by the Supreme Court (under a different case name), but the complexity of the issue is perhaps illustrated by the fact that four of the justices thought she was right.
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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. His seven non-fiction books include God’s Name in Vain: The Wrongs and Rights of Religion in Politics and Civility: Manners, Morals, and the Etiquette of Democracy. His first novel, The Emperor of Ocean Park (2002), spent eleven weeks on the New York Times bestseller list. His fourth novel, Jericho’s Fall, will be published in July.
A more accurate statement would be that of all of the opinions written by Judge Sotomayor that were reviewed by the Supreme Court, 60% were reversed. Or 3 out of 5 were reversed.
You don't understand. 99% of her cases were deemed worthy to stand on their own. Of the five that were examined, three were overturned. That's a batting average of .992. Or don't you follow baseball?
Also, several of these were done by politically-tinged majorities of 5-4. Given the bias of this court since Bush 41, that's not a bad average.
I love baseball. But I'm looking at the judges record of opinions that were reviewed by the Supreme Court. She had 5. 3 were reversed by the Court. Her record of opinions not being reviewed by the Court are impressive. However, 3 out of 5 reversals of the ones they did review is not.
You still don't understand. 99% of her opinions were adjudged OK and were not even brought forward. That's the real percentage.
Her numbers are indeed impressive. Of nearly 400 instances... only 3 cases were over-turned. I think most of us would like a batting average that high.
Ozone69 please read the article again because from your post it's obvious you either didn't read the article fully or you don't understand it fully. Otherwise you'd realize that the whole point of the article just explained why your statement makes no sense and by your logic Alito who Bush nominated would have had a reversal rate of 100% compared to Sotomayor's 60%...now do you get it or are you still drinking the Limbaugh Kool-aid.
Nine judges cannot properly represent the interests of over three hundred thousand Americans. There are hundreds of groups and sub groups that have to be heard. The excuse that judges are following a just constitution is lame. It was the same document that allowed George Washington to hold slaves, and the internment of Japanese during World War two. Constitutional laws have always been bent to suit those in power. Reshaping the Supreme Court to seat at least 50 judges would be much fairer to all Americans.
Thanks for clarifying that bogus analysis coming from the far right. I agree with Prof. Carter's assessment that we should have a thought provoking high end debate concerning the confirmation process of Judge Sotomayor.
Unfortunately, politics is a nasty business and I'm afraid that all we will hear summer long is the outlandish and distorted criticisms of the judges record and views.
Look - Sotomayor obviously isn't someone a conservative would nominate to the Supreme Court, however all this noise about her intelligence and qualifications is just that, noise. No one outside the fringe is seriously doubting her qualifications. Why even bring this stuff up. All she has to do are two things:
1. Explain away her remarks about being a wiser decision maker (the old - "I'm sorry if I offended anyone" practiced by athletes)
2. Explain her ruling in the Ricci case.
Done deal - she's wearing the robe.
1. The operative verb (always omitted) was "hope."
2. The Ricci case was decided on Title VII of present civil rights law. She has been a "constructionist," leaving lawmaking to the congress.
She was a constructionist to the extreme. Which would be okay, except she was billed as a member of the empathy school of justice. Why no empathy for a dyslexic white fireman who pulled out all the stops to better his life? It is clear from the Supreme Court review, and most likely overturn, that there is plenty of legal room for an empathetic ruling. Is her empathy politically based?
There is another operation here. She is an appellate court judge. That she chose to not go against current civil rights law has more facets than concern for a dyslexic fireman. New Haven has a large black population, if not a majority. The choice by the city council was unfortunate but required by law.
neverlate: Why no empathy for the black and hispanic fireman who pulled out all the stops to better their lives, only to be sidetracked by a (possibly) biased test?
BTW: Hope is not the operative word - it is simply rhetorical. Everything else in the sentence was operative. Why can't anyone have an honest debate? She clearly is intellectually qualified for the court and has exemplary experience. The question is have her life experiences created a bias that would preclude objectivity. I don't think so, given the reports on her rulings, but her clearly derogatory statement (please don't spin it), and her Ricci ruling (part of why she was picked is she demonstrated empathy in her rulings) need to be explained.
Certainly I've never been one who is considered PC, but I fail to understand why someone whose dyslexia is severe enough, that he needed to have the test study materials read into audio tapes, would not for that reason alone be disqualified to be a supervisor for a city's fire department. It seems logical to assume that a supervisor's duties would include a substantial amount of reading. If he were promoted, would the city be required to hire an extra employee, who would read to him aloud?
This isn't a lack of sympathy. A sister of mine suffers from mild dyslexia, and its early misdiagnoses almost got her placed into grade school remedial ed classes. She graduated from a University with dual BAs in Art History/Education, and for 16 years taught 2nd grade at a private grade school, earning the school's top teacher award three different years. She continuouslly put in much greater effort throughout her University years in order to graduate, than I ever did in University classes. Reading comprehension comes easy for me.
Obviously you have "grammar myopia" conditioned by political bias. There is no spin, only a full, honest, grammatically correct reading of the statement. Get out your 6th grade grammar book and diagram the sentence. Then translate it into at least four foreign languages with the proper verb forms. Then you'll understand it;-)
Blah blah, the Republicans have nothing. Sotomayor is as good as appointed.
It would have been a courtesy for Mr. Carter to disclose that he is a friend/classmate of Sotomayor.
And it is clear that she has the intelligence to be on the court. The problem is that full reading of her La Raza speech leaves unambiguous that she herself feels that she can't refrain from imposing a prejudice in favor of Latinos and, presumably, blacks, in judicial decisionmaking. Have we become so inured to Hispanic and black racism that we don't notice? How about "as a white man, my experience makes me betetr qualified to make wise decisionas than a black man." Mr. Carter, how do you feel about that?
I think Sotomayor demonstrates the opposite - that nominees/judges with such a strong sense of racial or ethnic or gender identity can't be trusted to make fair, unbiased decisions.
Were she white, were she Jewish, were she anyone making the condescending statements she made, she'd, to speak Bronx..outta here. She IS a racist and only blacks like Carter and other angry minorities can miss this.
DOn Imus was fired for less, and he wasn't trying for a life appointment on the highest court in the land.
I have read the full text, and I would categorize the phrase in question as an unfortunate choice of words, as it unto itself is not consistent with the rest of the speech. The point of the speech overall what that perspectives from diverse backgrounds and experiences are necessary for the overall effectiveness/soundness/wisdon of the judiciary. Perhaps what was needed in her statement at that particular moment was to add "on issues which a Latina perspective may provide greater insight to the specific case at hand."
apologies for my lack of wisdom in spelling "wisdom" :)
RTL212, Don Imus was NOT fired for less. I don't recall Sotomayor calling a basketball team "nappy-headed hos". You're really reaching on that one and don't you realize that it's stupid statements like that stop people from reading your opinions in mid-sentence? You can't get your point across when it's laced with lies and misrepresentations. A cogent argument backed up with provable facts is a much better way to go about it, but you can't seem to muster that. You just sound like another scared white guy.
The truth is in the numbers, well maybe not so much in this case. It's funny (or maybe not so funny) the way people will skew a story to make it show what they want. As long as half the facts are masked, and others are emphasized out of context, any story can be tailored to represent a person's particular viewpoint... even though it might not actually be accurate. The "calculation" that 60 percent of Judge Sotomayor's decisions have been reversed by the Supreme Court, when the percentage is actually eight-tenth of 1 percent of the time is disturbing to say the least. It's one thing when people skew information in conversation, but when the media people trust in is dispersing these "facts" on a widespread basis, misinformation runs rampant. I guess this just goes to show, check your facts before making judgment calls.
Thank you.
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