Sotomayor Guides U.S. Supreme Court Liberal Wing

WASHINGTON & SANTA FE, NM (By Adam Liptak, NYT) December 28, 2010 — At her confirmation hearings last year, Sonia Sotomayor spent a lot of time assuring senators empathy would play no part in her work on the Supreme Court.

That was a sort of rebuke to President Obama, who had said empathy was precisely the quality that separated legal technicians like Chief Justice John G. Roberts Jr. from great justices.

Justice Sotomayor would have none of it.

“We apply law to facts,” she told the Senate Judiciary Committee last year. “We don’t apply feelings to facts.”

We are now three months into Justice Sotomayor’s second term on the court. That is awfully early in a justice’s career to draw any general conclusions. But some things are becoming tolerably clear.

Justice Sotomayor has completely dispelled the fear on the left her background as a prosecutor would align her with the court’s more conservative members on criminal justice issues. And she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.

So far this term, the court has issued two signed decisions in argued cases. Both were unanimous, and both were insignificant.

But for anyone looking for insight into the justices, there was much more information to be gleaned from another genre of judicial writing. In the last three months, the court has turned down thousands of appeals, almost always without comment. On seven occasions, though, at least one justice had something to say about the court’s decision not to hear a case.

Such writings are completely discretionary, and they open a window onto the author’s passions. They are also a good way to keep track of the divisions on the court.

An ideological fault line ran through those seven opinions. Not a single member of the court’s four-member liberal wing joined any of the three opinions written by a conservative justice. And not a single member of the court’s four-member conservative wing joined any of the four opinions written by a liberal justice.

Justice Anthony M. Kennedy, the court’s swing vote, was the only justice to join none of the seven opinions, which simplified the analysis.

Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.

The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.

The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.

Justice Sotomayor saw things differently.

“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”

In the courtroom, she was no less outraged at the argument in a case concerning prison conditions in California, peppering a lawyer for the state with heated questions.

“When are you going to avoid the needless deaths that were reported in this record?” she asked. “When are you going to avoid or get around people sitting in their feces for days in a dazed state?”

At that same argument, Justice Samuel A. Alito Jr., who is in some ways Justice Sotomayor’s ideological and temperamental counterpart, reserved his sympathy for people who might be harmed after prisoners were released to ease overcrowding.

He recalled what happened when prisoners were released under a court order in Philadelphia. The upshot, according to a supporting brief filed by 18 states, was “an extraordinary crime wave” that included 79 murders, 90 rapes and 1,113 assaults over a year and a half in 1993 and 1994.

“That’s not going to happen in California?” Justice Alito asked, incredulous.

In an amusing and astute post on his legal blog, Mike Sacks said the two justices had become “their sides’ enforcers.”

The seven opinions about decisions not to hear cases support this theory. Justice Sotomayor wrote or joined all four from the liberal justices, and Justice Alito did the same for the ones from the conservative side.

“Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle,” Mr. Sacks wrote.

By contrast, he added, Chief Justice Roberts and the court’s newest member, Justice Elena Kagan, are all polish and charm. They wrote none of the seven decisions and joined one each. At arguments, their questions are wry and sly.

They are, Mr. Sacks wrote, “suave assassins, devastating advocates without compromising their gentility.”