Withheld Judgment

Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, has served for 11 years on the United States Court of the Appeals for the Second Circuit, which is one of the most important of the federal appellate courts. The Second Circuit’s jurisdiction includes New York City, and for that reason many of the most important cases involving securities laws, the operations of the markets, and other corporate and business activities come to the Second Circuit.

I see that some people already are highly critical of Judge Sotomayor, based in part on comments she has made in commencement addresses and other speeches. Stray comments made in the course of speeches seem like a poor basis on which to decide whether someone is suited to the nation’s highest court. I suggest, instead, that people read the opinions that Judge Sotomayor authored in her 11 years on the Second Circuit (and, before then, on the federal district court bench). Those opinions will provide lots of information about Judge Sotomayor’s analytical abilities, writing skills, and perspective on many different legal issues. An old rule of law states that a court speaks through its opinions and journal entries. Anyone assessing whether Judge Sotomayor merits elevation to the Supreme Court should start there, and withhold judgment until they have completed a careful review of her actual judicial work product.


I think nominating Justices for the Supreme Court is one of the most important tasks of the President, and also one of the tasks that most often produces unexpected results. (Just ask President Eisenhower, for example, how he felt about his nomination of Justice William Brennan.) President Obama, at the outset of his term, now gets to fulfill that important task. In this article, the President is quoted as saying that he will be looking for a nominee who will have “empathy” with the “hopes and struggles” of the common man. I don’t think I would identify “empathy” as an essential characteristic for a Supreme Court Justice — at least, not in the way that “empathy” is an important quality for, say, a priest, psychologist, teacher, social worker, or bartender.

Obviously, any individual who is nominated to the Supreme Court must be a fine lawyer. I think, however, that the truly exceptional Supreme Court Justices are those who can see beyond result-oriented decisionmaking and perceive the broader potential consequences of the legal rules that are established by the Court’s opinions. For that reason, I hope that President Obama does not limit the universe of potential nominees to law professors or jurists who have been on the bench for decades, but rather considers actual practicing lawyers who have struggled with how to apply Supreme Court decisions in the different, real-world factual contexts that are commonly presented in our law-oriented society. Often, litigation will focus on the interpretation of a single paragraph, a single sentence, or even a single word in a Supreme Court opinion. It would be nice to have a new Justice who could, perhaps, anticipate some of the practical problems that may result from the Court’s choice of words or framing of a multi-factor test that is to be applied under a particular statute and fashion an alternative approach that could avoid those problems. For a practicing lawyer, there is nothing more frustrating that a Supreme Court decision that raises more questions than it answers.

Vegetable Week: Nix v. Hedden

One of the great, yet underappreciated, Supreme Court opinions ever published was Nix v. Hedden, in 1893. In that seminal decision, the Court wrestled with the weighty question of whether a tomato is a “vegetable,” or a “fruit,” within the meaning of the Tariff Act of 1883. The entire decision, including title, reporter’s note, background description, and the Court’s opinion itself consume only four pages of the U.S. Reports, and the opinion of Mr. Justice Gray is a mere two pages long, with nary a footnote in sight.

The Court’s opinion was straightforward. It unanimously found that there was no evidence that the words “fruit” and “vegetable” had acquired any special meaning in trade or commerce. As a result, the words used in the Tariff Act had to be given their ordinary meaning. The Court then applied the ultimate test — namely, when are tomatoes served during a dinner meal? The Court reasoned: “Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast and not, like fruits generally, as dessert.” In short, because no rational person would consume a tomato for dessert, it must be a vegetable.

It’s too bad we have moved beyond the days when the Supreme Court could address truly momentous legal issues, like whether a tomato should be deemed a fruit or a vegetable. In any case, Nix v. Hedden is a very helpful authority to cite when smart-alecks — like my good friend Dr. Science — argue that my anti-vegetable stance should not extend to tomatoes because, botanically speaking, they are properly classified as a fruit. Take that, Dr. Science! The Supreme Court as spoken, and as a lawyer I am bound to follow precedent.