Sotomayor Draws Retort From a Fellow Justice
By ADAM LIPTAK
Published: December 8, 2009
WASHINGTON — The Supreme Court released its first four decisions in argued cases this term on Tuesday. They were all minor, but one was notable for being Justice Sonia Sotomayor’s Supreme Court debut and for prompting a testy concurrence from Justice Clarence Thomas.
The case concerned whether federal trial-court rulings concerning the lawyer-client privilege may be appealed right away. Justice Sotomayor, with methodical reasoning and a formal writing style, said no.
“Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings,” she wrote, “would unduly delay the resolution of district court litigation and needlessly burden the courts of appeals.”
Justice Sotomayor said that result was dictated by sound policy and was consistent with a law governing appeals.
The decision was unanimous, but Justice Clarence Thomas declined to join the part of Justice Sotomayor’s opinion discussing why the cost of allowing immediate appeals outweighs the possibility that candid communications between lawyers and their clients might be chilled.
In a concurrence, Justice Thomas took a swipe at his new colleague, saying she had “with a sweep of the court’s pen” substituted “value judgments” and “what the court thinks is a good idea” for the text of a federal law.
The federal government had urged the court to rule as it did but asked the court to exclude appeals of claims of the state secrets privilege and other governmental privileges from the sweep of its ruling. Justice Sotomayor obliged with a footnote saying “we express no view on that issue.”
In an otherwise dry opinion, Justice Sotomayor did introduce one new and politically charged term into the Supreme Court lexicon.
Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term “undocumented immigrant,” according to a legal database. The term “illegal immigrant” has appeared in a dozen decisions.
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