Adam Liptak writes today about the quick evolution of Sonia Sotomayor into the liberal bulwark on the Supreme Court. People forget that there was substantial concern on the left that Sotomayor would wind up more of a moderate; those fears may or may not be more likely ascribed to Elena Kagan. But Sotomayor has become what amounts to a liberal on a conservative Court.
Liptak looks in particular at a series of discretionary writings by Sotomayor referring to why the court declined to hear a particular case.
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.”
You’re at least seeing a recognition in her writing of that wrongly-derided concept of empathy; the ability for a judge to understand the circumstances of an individual and apply it to the underlying facts of a case. Liptak posits Sotomayor as the counterpoint to Justice Samuel Alito, with the two almost coming across as “enforcers” for the beliefs of their ideologically aligned colleagues.
Strip away the racial or gender politics of the selection. On the merits, the Sotomayor picked has worked out pretty well for the country, and unlike some other decisions this one will definitely outlast Obama’s Presidency by several decades.
David Dayen
