Legalese in Sotomayor hearing explained

WASHINGTON — Not everyone participating in Sonia Sotomayor’s Supreme Court confirmation hearing is a lawyer, so the terms flying back and forth can get baffling.

Sen. Dianne Feinstein, D-Calif., is one of those non-lawyers present, and gave a plea Thursday to Sotomayor to explain in “common, everyday English” what the oft-repeated phrase “per curiam” means.

“I’ve had a lot of people ask me, particularly from the West Coast,” Feinstein said.

Here’s a look at the meaning of “per curiam” and some other terms cropping up in the hearing:

— Per curiam. By the court. A ruling that is handed down by a court but unsigned by the individual judges. It is usually accompanied by little if any explanation of how judges reached their decision.

“It’s essentially an unanimous opinion” where the court doesn’t add anything to the decision by the court below, Sotomayor said Thursday. Republicans complained that Sotomayor and two other judges on an appeals court panel provided only cursory reasoning when they ruled per curiam against white firefighters in their discrimination lawsuit in New Haven, Conn.

Per curiam opinions are often but not always unanimous. The Supreme Court’s most famous per curiam opinion was Bush v. Gore, the bitterly disputed 5-4 ruling that essentially ended the 2000 presidential election in favor of George W. Bush.

— Amicus brief. It’s a document filed in a court case by someone not directly related to the case. Sotomayor sat on the board of LatinoJustice PRLDEF, which filed several amicus briefs in cases they were interested in, but not litigating. She said she was not involved in deciding which cases they would file amicus briefs in or what was said in those briefs.

— Disparate impact. Unintended discrimination against a racial, ethnic or sex group. The city of New Haven, Conn., thought a firefighter test in which many minorities did not score high enough for promotion could bring about a lawsuit claiming disparate impact discrimination. The city threw the test out, and the firefighters who did score high enough for promotion sued, arguing that they were intentionally discriminated against because of their race. Sotomayor and her appeals court panel threw out that lawsuit. The Supreme Court overruled them.

— Case of first impression: That means a legal case in which there is no binding authority on the matter. Sen. Jon Kyl, R-Ariz., argued that the New Haven, Conn., firefighter case that Sotomayor and her appeals court colleagues dismissed was a “case of first impression,” meaning that Sotomayor could not have been following precedent, as she has argued.

—Prima facie: At first glance. Simply, it means a case that at first glance presents sufficient evidence for the plaintiff to win. Sotomayor said the question the appeals court panel had to consider in the New Haven, Conn., firefighter case was this: If the city decided to use a challenged test for promotions, would test results likely to lead to the promotion of few minorities allow minority firefighters to make a “prima facie case” of discrimination.

— Pro bono. In Latin, “for the public good.” It means work lawyers do for free for the benefit of society. Even though senators have focused on her “wise Latina remark,” Sotomayor said the majority of her speeches are about “public service and pro bono work.”

— Jurisprudence. From the Latin term juris prudentia, defined as “the study, knowledge or science of law.” A long word that means judicial philosophy. Sotomayor said a lawyer who claimed that she has liberal instincts “has not read my jurisprudence for 17 years.”

— Stare decisis. To stand by a previous decision — one way of saying to be guided by precedent. Sotomayor used the term when asked about a 5-4 Supreme Court decision in 2005, Kelo v. City of New London, that local governments may seize people’s homes and businesses for private economic development.

— Judicial precedent. A ruling that establishes a principle that another court later relies on when presented with a similar circumstance. Supreme Court and judicial nominees always say they will follow judicial precedent. However, once confirmed to lifetime seats, judges can use any reasoning. Sotomayor said Tuesday a court should only depart from precedent “very, very cautiously.”

— Fundamental rights. Some rights are fundamental in a legal sense, others are not. The Constitution is the leading but not sole authority on which is which. A right that the Supreme Court deems fundamental is much harder to restrict than other rights. At issue in the Sotomayor hearing is whether the right to bear arms is a fundamental right beyond the reach of state and local gun controls. The Supreme Court hasn’t decided whether bearing arms is a fundamental right. It might consider the question this fall.

— En banc. A French term meaning cases heard by all appeals judges in a circuit, not just one judge or a panel of them. Usually done with cases of special importance or complexity.

— Petition for certiorari. The term for appealing a ruling to the Supreme Court.