Dispatches from the Creation Wars

I was one of many people who were concerned about Justice Sotomayor’s record on criminal justice issues, based on her previous rulings and her background as a federal prosecutor. But so far she has turned out to be particularly strong on such issues, even going so far as to publicly declare her objections when the court denies cert in cases she thinks are important. USA Today reports:

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…

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.”

So far she has proven me wrong. Hope she continues to do so.