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December 28, 2010

Noting Justice Sotomayor's concern with some prisoner's cert. denied

Yesterday's USA Today had this interesting piece by Joan Biskupic headlined "Sotomayor protests court's refusal of appeals," which got started this way:

Supreme Court Justice Sonia Sotomayor has set herself apart from colleagues with her fervent statements protesting the majority's refusal to take some appeals, particularly involving prisoners.

Each month, the justices spurn hundreds of petitions from people who have lost in lower courts, and rarely does an individual justice go public with concern about the denial.  In the seven times it has happened since the annual term opened in October, Justice Sotomayor has signed four of the opinions, more than any other justice.  She was the lead author on three, again more than any other justice.

She forcefully dissented when the justices refused to hear the appeal of a Louisiana prisoner who claimed he was punished for not taking his HIV medication.  He said prison officials subjected him to hard labor in 100-degree heat.  Writing alone, she said the inmate had a persuasive claim of cruel and unusual punishment.

This emerging pattern of dissenting statements helps define a justice in her second term who is still — like newest justice Elena Kagan — fresh in the public eye.

On the law, Sotomayor has been in the liberal mold of her predecessor, David Souter, and her approach to writing opinions on cases heard has been fact-specific and free of rhetorical flourish.  That was her style as a trial judge (1992-98) and appeals court judge (1998-2009).

Yet she has stood out as one of the most demanding questioners during oral arguments. She often breaks in as a fellow justice is questioning a lawyer, although she is not alone. Antonin Scalia also has an aggressive approach.  Her tendency to protest when the justices pass up a case she believes is crucial may be another way of getting her voice heard.

Adam Abensohn, a law clerk to Sotomayor earlier in her career, said of the recent dissents, "If she has a viewpoint, she won't hesitate to assert herself.  If she thinks it's a good idea to do something, she's not going to hold back simply because 'it's not the way things are done' or because she's relatively new."

Abensohn, who practices law in New York, said that although such dissenting opinions have no immediate legal consequence, they "may plant the seeds for the court to address an issue down the road....  In a sense, Justice Sotomayor is placing her stamp on issues that may be decided years from now."

December 28, 2010 at 08:39 AM | Permalink


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Aggressive questioner? That's an interesting way to describe it. The "wise Latina" made a fool out of herself with her monomania about the 6.5 hrs in the Pinholster oral argument. Guess the "wise Latina" missed the day of law school where they taught that "in the factual record" isn't a synonym for "properly raised on appeal." And last Term (I don't remember the case), Toby Heytens made a fool out of her by explaining the difference in analysis with respect to the Fourth and Fifth Amendments. Of course, this is not surprising to anyone who followed the "wise Latina's" SJC testimony. Her risible answer to Senator Kohl's questioning on term limits was painfully incoherent, and her commentary that Justice Ginsburg's dissenting opinion in Ricci would have affirmed the Second Circuit's decision was patently and demonstrably wrong--I guess the "wise Latina," after all those years on the bench, forgot how to read appellate opinions. Perhaps "wise Latinas," as compared to white males, have an insight, hitherto unknown, about how a dissenting opinion that would uphold a grant of summary judgment for the defendants on one claim, but leave another claim undiscussed, "would have affirmed" a lower court decision that summary judgment was proper on all claims for the defendants.

Sotomayor is to put it mildly, a bully. And given what I have shown above, she's not a very bright one (when compared to other members of the federal appellate bench).

Posted by: federalist | Dec 28, 2010 10:17:24 PM

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