FactCheck: How Many Sotomayor Opinions Were Overturned?

Have Judge Sotomayor's decisions really been overturned 80 percent of the time as Rush Limbaugh stated on May 26?

Of the majority opinions that Judge Sonia Sotomayor has authored since becoming an appellate judge in 1998, three of her appellate opinions have been overturned by the Supreme Court.

Our search for appellate opinions by Sotomayor on the LexisNexis database returned 232 cases. That's a reversal rate of 1.3 percent.

But only five of her decisions have been reviewed by the justices. Using five as a denominator, the rate comes out to 60 percent.

We have contacted Rush Limbaugh to ask how he came up with the figure he used recently when he said, "She has been overturned 80 percent by the Supreme Court." We'll update this item if we receive a response. In the week before President Barack Obama announced that he would nominate Sotomayor, the conservative Judicial Confirmation Network ran an Internet ad saying she had a "100 percent reversal rate," which is false. (We asked that group for back-up material, which a spokesman agreed to give us but which we never received; since Obama's announcement, the group has taken the ad down.)

In any case, 60 percent of the cases the Supreme Court has reviewed is not a particularly high number. In any given term, the Supreme Court normally reverses a higher percentage of the cases it hears. During its 2006-2007 term, for instance, the Court reversed or vacated (which, for our purposes here, mean the same thing) 68 percent of the cases before it. The rate was 73.6 percent the previous term.

In two of the three Sotomayor reversals, at least some of the more liberal justices dissented, agreeing with her holding.

One was a 5-4 decision in 2001 in Correctional Services Corporation v. Malesko, which involved an inmate who sought to sue a private contractor operating a halfway house on behalf of the Bureau of Prisons over injuries he sustained. Sotomayor said he could, but a majority of the justices disagreed.In another case, Sotomayor wrote that under the Clean Water Act, the Environmental Protection Agency could not use a cost-benefit analysis to determine the best technology available for drawing cooling water into power plants with minimal impact on aquatic life. By a vote of 6-3 this year, the Supreme Court ruled otherwise in Entergy v. Riverkeeper. The third reversal, in 2005, was a unanimous 8-0 decision in the case Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit.Sotomayor had written that a class action securities suit brought in state court by a broker/stockholder was not preempted by the 1998 Securities Litigation Uniform Standards Act. But the high court's opinion said it "would be odd, to say the least" if the law contained the exception that Sotomayor said it did.

The Supreme Court is expected to rule by the end of June on the much-discussed Ricci v. DeStefano case in which Sotomayor took part. It's not publicly known whether she wrote the unsigned, one-paragraph order in the reverse discrimination case involving firefighters in New Haven, Conn., to which all three of the judges hearing the case agreed. (That order later became an official opinion with the same wording at the behest of other 2nd Circuit judges.) The decision, upholding the ruling of the lower-court judge who first heard the case, said the city was justified in not certifying the results of an exam required for firefighters to be promoted after no African Americans scored highly enough to be considered.

(Note: We haven't analyzed cases in which Sotomayor merely voted with the majority, only those in which she is on record as having written the majority opinion. She also may have written some unsigned opinions or orders, such as the one in the Ricci case above, but we have no way of knowing if that's true or if so, how many she may have written.)
— Viveca Novak