Much is being made, in some circles, of the fact that 60 percent of the majority decisions written by Judge Sonia Sotomayor during her tenure on the Second Circuit, on which appeals have been heard by the Supreme Court, have been reversed. On its face, this sounds awful; no judge should be reversed anywhere near 60 percent of the time.
However, the statistic appears to be meaningless. It relates only to Sotomayor’s decisions as to which a petition for a writ of certiorari was granted by the Supreme Court–a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent. This shouldn’t be too surprising, as it requires four votes on the court to grant a writ of certiorari, and five to reverse the Court of Appeals’ decision.
So, unless there is more to the story, conservatives should stop citing the 60 percent figure as evidence of any lack of competence on Sotomayor’s part.