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Sonia Sotomayor’s Last Laugh—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on November 4, 2010.

Sonia Sotomayor’s Last Laugh
By Linda Greenhouse ’78 MSL

Justice Sonia Sotomayor is accustomed to being underestimated and to surpassing the expectations of her doubters. So I’ll wonder if she even took the time to ponder the leak last week of a May 2009 letter to President Obama from a famous Harvard law professor lobbying for the selection of Elena Kagan to replace Justice David H. Souter, whose retirement had recently been announced. I’m quite sure it is the professor, Laurence H. Tribe, rather than Justice Sotomayor, who is mortified by the revelation that he had dissed the soon-to-be-nominee, a graduate of Princeton and Yale Law School, as “not as smart as she seems to think she is.”’

(Memo to self: Remember always to speak generously about others when sending the president a letter — which, even if not leaked by your enemies in close to real time, is bound to end up eventually in a presidential library.)

Professor Tribe told Charlie Savage of The Times last week that his early reservations about Sonia Sotomayor — who of course has since been joined on the Supreme Court bench by Justice Elena Kagan — have been “happily negated by her performance as a justice thus far.”

This episode, which needless to say has been the talk of the law school where I teach, reminds me that most people are probably unaware of how, or what, Justice Sotomayor has been doing since she joined the court in August 2009. Understandably enough: by the time late this past spring when the justices began churning out the term’s biggest decisions, another Supreme Court vacancy was already looming and the newly nominated Elena Kagan was the next new thing.

And typically for a freshman, Sonia Sotomayor did not have a blockbuster majority opinion-writing assignment to which one could confidently point and describe as the essence of the new justice in her first term. Without speaking often in her own voice, she of course chose sides and cast votes. I counted 18 cases last term that were decided by five-justice majorities. Of these, eight were sufficiently ideologically inflected to divide the court along ideological lines. In all eight, Justice Sotomayor allied herself with Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer. Consistently on the other side were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr. and, in all but one of the eight cases, Anthony M. Kennedy.

In the 40 non-unanimous cases in which she participated, she voted most often with Justices Ginsburg and Breyer (32 times each) and least often with Justice Alito (15 times.) In criminal cases, including habeas corpus cases, she was second only to Justice Stevens in voting on the side of the criminal defendant.

Indeed, it is the court’s criminal docket that seems to call on Justice Sotomayor’s expertise — she is a former New York City prosecutor — and evoke her passion. That was evident last term, when she wrote on behalf of her usual three allies in dissenting from a decision that gave the police the benefit of the doubt when suspects fail clearly either to invoke or to waive their right to remain silent during interrogation. Under the court’s previous interpretation of the right protected by the Miranda decision, the prosecution had the burden of demonstrating that the suspect had waived his Miranda rights. The new decision, Berghuis v. Thompkins, relieves the prosecution of that burden, permitting courts to interpret ambiguity as an implied waiver.

“Today’s decision turns Miranda upside down,” Justice Sotomayor objected in her dissenting opinion. “Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak.”

Five weeks into its new term, the court has issued no formal opinions so far. But that is not to say that the justices have been silent. The Roberts court has seen the revival of the practice of individual justices dissenting publicly from the court’s refusal to hear a case and explaining why they believe the case to be worthy of the court’s attention. For the court to accept an appeal for argument and decision takes the votes of four justices. It was once quite common for a justice who could not find a fourth vote (or even a second) to issue a “dissent from denial,” thus offering a peek behind the closed door of the justices’ conference room and sending a signal that the issue was at least on someone’s screen.

These dissents all but died out under Chief Justice William H. Rehnquist, who — this is a guess — may have disapproved of shining a light on the court’s crucially important but little understood agenda-setting function. I am certain that justices regularly disagreed about which cases to grant, but those who didn’t prevail kept their disappointment to themselves. Chief Justice Roberts himself has restored the practice with enthusiasm. Two years ago, he wrote a dissent from denial in a case involving a drug arrest, describing the scene of the crime as a whimsical film-noir parody: “The neighborhood? Tough as a three-dollar steak.” Clearly, the dissent from denial is, or can be, a form of unconstrained judicial expression that permits the justices to speak

Against this background, a solo dissent from denial that Justice Sotomayor published last month was telling. A Louisiana prison inmate, Anthony C. Pitre, refused to take his H.I.V. medication in protest against a transfer from one prison to another. He then sued prison officials on the ground that they unconstitutionally retaliated against him for his recalcitrance by assigning him to especially hard outdoor labor, including working with hand tools on the prison farm in temperatures of over 100 degrees and pushing a 150-pound lawnmower in similar temperatures. He suffered various medical complications, but when he complained and asked for lighter duty, he was told that the situation was his own fault and that he should take his medicine.

A federal magistrate judge, Kathleen Kay, recommended dismissing Mr. Pitre’s lawsuit as frivolous. “Plaintiff has been, as the saying goes, ‘hoist by his own petard,’ and this attempt to blame his current predicament on the defendants is absurd,” the judge wrote. The federal district court and the United States Court of Appeals for the Fifth Circuit agreed.

The justices treated Mr. Pitre’s appeal, Pitre v. Cain, as something more than completely routine when it arrived at the Supreme Court last spring. First, the court instructed the Louisiana prison officials to respond to the petition, which they had failed to do. Then the justices considered the case three times in conference. In the end, perhaps Justice Sotomayor was the only member of the court who wanted to hear the case. Maybe there were others at one point. All we know for certain is that she was the only one to note her dissent from denial and to explain her reasons.

“To be sure,” she wrote, “Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain.” But she noted that the Supreme Court’s precedents give people a constitutional right to refuse unwanted medical treatment. She added that while the court has never addressed whether this principle applies to prisoners with H.I.V., the prisoner’s behavior in this case “does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him.”

Justice Sotomayor wrote in conclusion that the prisoner had presented a substantial question of whether his treatment amounted to cruel and unusual punishment in violation of the Eighth Amendment. “I cannot comprehend how a court could deem such allegations ‘frivolous,’” she said.

As a longtime watcher of the Supreme Court’s docket, I have to observe that Mr. Pitre’s appeal did not fit the profile of the kind the court usually accepts. The single most important criterion for the justices is whether the issue is one that has created a conflict among the lower courts. That was not the situation here, and Mr. Pitre’s own odd complicity in his plight made him an unlikely symbol for prisoners’ rights. If the court had granted the case and overturned the Fifth Circuit, it would have done so simply to correct an error — something that justices declare self-consciously from time to time that they don’t do; the court doesn’t see its role as dispensing retail justice.

So they say, but then on Monday of this week, the court issued another dissent from denial, this one written by Justice Alito and signed by Justice Scalia and Chief Justice Roberts. These three would have granted California’s appeal of a decision by the United States Court of Appeals for the Ninth Circuit, which ruled that a state trial judge unconstitutionally coerced a deadlocked jury by commenting on the evidence and urging the jurors to consider the inconsistencies in the testimony of the two co-defendants in a robbery and sex crime case.

The jury went back to work and returned with a conviction. Noting that there is little clear law on the scope of a judge’s discretion to comment on evidence, Justice Alito said that the Ninth Circuit transgressed its authority by substituting its own view of the question for the reasonable judgment of the state courts. The Supreme Court should grant the case “and correct the Ninth Circuit’s error,” he concluded.

Error-correction to the left, error-correction to the right; error correction is us in today’s Supreme Court. Amid a rising cacophony of voices, I expect that we will be hearing Justice Sotomayor’s distinctive voice, clearly and without apology. She knows what she thinks, and she knows something else: she got the job.