Judge Sotomayor on textualism and voting rights in Hayden v. Pataki

Folks can find lots and lots of interesting SCOTUS nominee Sotomayor blogging on various topics at The Volokh Conspiracy and SCOTUSblog and elsewhere.  Here I will continue to keep the focus on criminal justice issue, while also stressing that a close review of Judge Sotomayor's work in criminal justice cases might provide the best window into her various perspectives on law and judging.

Today I enourage everyone to consider Judge Sotomayor's comments in her one-page separate dissent in the en banc case, Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), which concerned felon voting rights.  The full Second Circuit opinion is available here and here is the full text of Judge Sotomayor's dissent (which appears on page 100 of the 103-page pdf!):

SOTOMAYOR, Circuit Judge, dissenting.

I join in Judge Parker's dissent, and write this separate opinion only to emphasize one point.  I fear that the many pages of the majority opinion and concurrences — and the many pages of the dissent that are necessary to explain why they are wrong — may give the impression that this case is in some way complex.  It is not.

 It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that § 5-106 disqualifies a group of people from voting.  These two propositions should constitute the entirety of our analysis.  Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.

The duty of a judge is to follow the law, not to question its plain terms.  I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.  The majority's "wealth of persuasive evidence" that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act,  Maj. Op. at 322, includes not a single legislator actually saying so.  But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

I respectfully dissent

If I were told this opinion was from a Supreme Court Justice rather than from a lower court, I would likely guess that it came from the pen of Justice Scalia.  The commitment to textualism reflected in this short opinion in Hayden, not to mention the poke at other judges for adding complexity to an issue she thinks simple, suggests that in some ways we may find that Sotomayor may be a version of Scalia cooked with a Latin salsa instead of Italian gravy.

Prior post on the SCOTUS nomination of Judge Sotomayor:

• Some very early, very brief sentencing reflections on Judge Sotomayor
• A quick thought on Judge Sotomayor's sentencing work in Cavera
• Noting early unpublished sentencing opinions from Judge Sotomayor
• President Obama to nominate Judge Sonia Sotomayor for Supreme Court
• Notable background parallels between Judge Sotomayor and Justice Alito