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Sotomayor protests court's refusal of appeals

USA Today

Dec 27, 2010

By Joan Biskupic

WASHINGTON — 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."

Dissents can change colleagues' minds — if not then, later. In February 2009, Scalia protested that the court repeatedly rejected appeals involving an open-ended U.S. law making it a crime for officials to deprive citizens of their right to "honest services." Dissenting alone in one of these disputes, Scalia noted lower courts disagreed on what offenses were covered and declared, "It seems ... quite irresponsible to let the current chaos prevail."

A few months later, the court took up the issue and ultimately ruled in a way that narrowed the law to bribes and kickbacks.

Sotomayor has been most vocal in criminal law cases. In the appeal from the Louisiana prisoner, she wrote that his decision to refuse medication "does not give prison officials license to exacerbate (his) condition further as a means of punishing or coercing him."

In another case, she objected when the justices declined to take a petition from an Arkansas murderer who said jurors should have heard mitigating evidence of his brutal childhood before deciding on a death sentence. She was troubled by an appeals court's decision letting officials wait to object to a claim for a new hearing until they had heard the prisoner's evidence and he had prevailed at an early stage.

Sotomayor said states should not be allowed "to manipulate federal ... proceedings to their own strategic advantage at an unacceptable cost to justice." She was joined only by Justice Ruth Bader Ginsburg. It takes four votes among the nine for the high court to take a case; it then takes five votes to resolve the case.

Jonathan Kirshbaum, a senior lawyer at the non-profit Center for Appellate Litigation in New York, which represents indigent defendants, said he has been struck by how Sotomayor, a former prosecutor, has "come out so strongly for criminal defendants."

Sotomayor declined to comment for this story.

Justice Samuel Alito, also a former prosecutor, has been a close second this term in publicly objecting when the majority declines a case. He protested in three cases and authored the opinion in two. On criminal matters, he tends to favor law enforcement.

When Sotomayor was appointed, some defendants' rights advocates, including Kirshbaum, speculated that she might take a hard line on prisoner appeals.

He said she's adopting a much different approach. "There seems to be real feeling behind these opinions," he said. "They give the criminal defendant's perspective on these issues."

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