Sonia Sotomayor's Misplaced "Humanity"
In his recent article for the New York Times, Adam Liptak praises Sonia Sotomayor for her willingness to let her sense of humanity influence the way she judges cases that come before the Supreme Court. Liptak writes:
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 that 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.
Liptak relies on Justice Sotomayor's response to two appeals--which the Court ultimately turned down--in coming to his assessment about her "humanity."
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?”
There is an unfortunate disconnect between the judicial philosophy of a judge and his or her behavior as a judge. The reason we use the word judge is because we know in our bones that judging requires, when all is said and done, judgment. To be sure, there are many cases in which the facts of the case and the law are both clear. Those cases only make it to the Supreme Court when some lower court has gone badly astray.
Most cases that reach the Supreme Court consist typically of disputes that are harder to judge. These cases involve strong considerations of the variables on both sides of the dispute. Small differences in the analysis of these variables can tip the balance of the case one way or another. Judgment now matters.
The question is how well does a Justice respond to these various imperatives?
What should one do with the prisoner who refuses to take his AIDS medicine as a protest to being transferred from one correctional facility to another? Here it may well be that putting the fellow to hard labor will not do the job. But should the prison authorities back down, setting a bad precedent for the other prisoners? Or should the authorities just transfer him against his will, and let him die because he is killed by a disease? Or should they impose hard labor on the prisoner, resulting in several trips to the ER, as was done with Anthony C. Pitre when he went on his drug strike?
Clearly all these alternatives are unpleasant. My own sense on these management issues is to defer to the parties in charge unless they are just way off base. Eight judges of the Supreme Court seemed to think that this was the right way to go. I suspect that Justice Sotomayor showed bad judgment, not great compassion, when she took a different course.
The situation with prison conditions in California is much tougher. The state is in fiscal shock. The police guard union is all too strong. The budget has gone south because of all sorts of fatal legislative moves in taxation, land development, and labor.
On this matter, Justice Sotomayor should have been less willing to pepper the counsel for the state with endless questions. Rather, she should have asked herself this question: to what extent has the explosion of state regulation ruined the economy of the state so as to bring on this mess?
Unfortunately, her reasoning has matters exactly backwards. She defers to government officials who regulate private conduct, but attacks those who run government facilities. That basic mindset shows bad intellectual judgment which will lead to a decline in economic and social fortunes that no amount of compassion can cure.
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Dec '10
Re: Sonia Sotomayor's Misplaced "Humanity"
Do Justices even take an opinion they know full well that no other Justice will join simply for political expediency? Would Justice Sotomayor, to appeal to the progressive base, write an opinion or behave in such a manner exemplified to legitimize her appointment? I hope not, but in a sort of "throw away" situation, is that a possible explanation for such heavy appeal to emotion? Whether this was the intended ends or not, it obviously impressed the good progressives at the New York Times.
May '10
Re: Sonia Sotomayor's Misplaced "Humanity"
This sort of thing always puts me in mind of the first three verses of Exodus 23:
1“You shall not bear a false report; do not join your hand with a wicked man to be a malicious witness. 2“You shall not follow the masses in doing evil, nor shall you testify in a dispute so as to turn aside after a multitude in order to pervert justice; 3nor shall you be partial to a poor man in his dispute."
The key verse here is the third, in which judges are forbidden to favor a disputant merely because he is poor. Increasing its force are the two previous verses, warning against false or malicious witness or perverting justice in favor of popular opinion. This juxtaposition suggests that in fact the apparent kindness of favoring the poor or powerless simply because of their status is a serious perversion of justice. The temptation to do so must be as old as civilization, and its corrupting effect on the social order an inevitable result of such behavior, in all times and in all places.
Re: Sonia Sotomayor's Misplaced "Humanity"
Sotomayor has become what conservatives feared--a rather average legal talent, unthinkingly attached to the left, allowing empathy takes precedence over excellence. According to Court watchers, Sotomayor has never voted at odds with the liberal wing of the Court. Here is a column of mine from the time of her nomination, which predicted her unswerving allegiance to doctrinaire left wing legal positions.
Re: Sonia Sotomayor's Misplaced "Humanity"
Her use of dissents from denials of cert--as Court insiders call them--shows two things. One, as the Liptak article indicates, Sotomayor has very little influence on her colleagues. The second, and more disturbing, is that she is trying to invite more constitutional challenges to the difficult cost-benefit trade-offs that our governments must make after decades of fiscal profligacy.
As Richard points out, these cases involve hard choices about how much to spend on prisons versus the other budgetary demands on California's shrinking budget.
Should California spend more money on police and schools than prisons? These are hard questions, and I can tell you that the one set of officials who should not decide them are judges. Sotomayor is trying to use these dissents to signal to litigants that there might be more hope in the future for such challenges. To me, this displays an utterly activist approach to the role of the Supreme Court, one which will only bring it more trouble and embroil it even further in politics.
Edited on December 28, 2010 at 9:10pmMay '10
Re: Sonia Sotomayor's Misplaced "Humanity"
Is it fair to say Justice O'Connor was somewhat similar, in, as I understand it, looking to resolve cases where possible on an individual (and therefore presumably personal) basis and trying to avoid setting precedent?
Nov '10
Re: Sonia Sotomayor's Misplaced "Humanity"
So, our "wise Latina" refuses to use her head. Wonderful...