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August 9, 2011

Seeking reflections and/or forecasts on the Roberts Court and sentencing jurisprudence

Emily Bazelon has this notable mid-summer SCOTUS essay in this past week's issue of The New York Times Magazine. It included these notable passages about the two newest Justices:

The court’s most recent additions, the Obama appointees Sonia Sotomayor (two years on the bench) and Elena Kagan (one year), have quickly become a formidable duo on the court’s left flank, with the promise to serve as a 21st-century version of Thurgood Marshall and William Brennan.  They have voted the same way in 96 percent of the cases they have both heard — the highest rate of agreement of any pair of justices.

But what’s more interesting is that the two women couldn’t be less alike in their leadership styles.  Sotomayor seems to relish going it alone as the court’s liberal voice of conscience.  She wrote five solo dissents and concurrences this year to Kagan’s none. And she has been far more concerned about the rights of the convicted on the high court than she was earlier in her career.  In the 29 opinions Sotomayor wrote as a district and appeals court judge, she never once granted relief to a prisoner petitioning for a writ of habeas corpus, the appeal of last resort for the convicted.  Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat.  She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea.  With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.

Kagan, meanwhile, has positioned herself as chief diplomat (reminiscent of Brennan). As a D.C. lawyer familiar with the court put it, “If you asked every justice who Justice Kagan’s favorite is, they’d all name themselves, except maybe Chief Justice Roberts.”  Justice Ruth Bader Ginsburg has been so impressed by Kagan’s work that she told me, “Elena has it in her to be one of the exemplary justices of our time.”  That’s wild enthusiasm from one justice to another.  As the most senior member of the court’s left wing, Ginsburg now has the power to decide who will write the dissent when the court splits five-to-four along ideological lines.  She gave two of the big cases to Kagan, who came through with dissents that were models of forceful clarity and that even employed humor in search of a wider audience.

The Marshall and Brennan comparison struck me as intriguing and somewhat compelling unless one was focused upon the death penalty: Justices Marshall and Brennan (in)famously viewed the death penalty as unconstitutional in all circumstances; there is no basis for believe Justices Sotomayor and Kagan now or will even have this view.  This death penalty reality aside, it is interesting to speculate not only how Justices Marshall and Brennan would have respond to modern SCOTUS sentencing issues, but also how Justices Sotomayor and Kagan will engage with these issue in the coming years and decades.

More broadly, as the title of this post suggests, I think it is now a quite good time to reflect broadly on the past, present and future of the Roberts Court and sentencing jurisprudence.  In the wake of four major personnel changes, the composition of the Court seems likely to be settled and stable for at least a few more years.  But many non-capital sentencing doctrines with constitutional elements, ranging from Apprendi to Booker to Padilla to Graham, hardly seems settled and stable.  Where do folks think these and other sentencing doctrines might be headed?

August 9, 2011 at 12:09 PM | Permalink


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This court can more correctly be defined as "The Kennedy Court," as the sharp divide between the strict vs. creative interpretive wings of the court. Kennedy's vote is usually the key vote as he's either the most conservative opinion of the creative wing, or the most liberal opinion of the strict wing.

Posted by: Eric Knight | Aug 9, 2011 1:47:50 PM

Eric Knight

how true. In numerous capital cases, Kennedy's vote has determined life or death for the inmate. McCleskey, Darden among others. On the other hand, he has voted with the left a few times with the opposite result.

Stevens and Souter overwhelmingly voted with the prisoner, so there has been little change there. Sotomoyor did author an opinion in a Alabama case her freshman year upholding the death sentence, something Souter would have never done. Her and Kagan also voted with the unanimous court setting aside several 6th and 9th circuit opinions on AEDPA grounds.

Posted by: DaveP | Aug 10, 2011 5:24:44 PM

I think this is a great post. One thing that I find the most helpful is number five. Sometimes when I write, I just let the flow of the words and information come out so much that I loose the purpose. It’s only after editing when I realize what I’ve done. There’s defiantly a lot of great tips here I’m going to try to be more aware of.

Posted by: abercrombie and fitch | Aug 11, 2011 2:31:51 AM

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