Breaking In: The Rise of Sonia Sotomayor (27 page)

Sotomayor’s views were influenced by her experience as a Puerto Rican in the Bronx and also as an assistant district attorney in Manhattan. She knew firsthand how much raw power prosecutors and the police possessed.

During her early terms Sotomayor distinguished herself with impassioned statements when her fellow justices refused to take up defendants’ appeals. Individual justices rarely went public with their concerns over which cases the Court decided to hear among the nearly eight thousand filed annually. But Sotomayor did so several times.
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In
Pitre v. Cain
, she protested when the Court refused to hear the appeal of a Louisiana prisoner who claimed he was punished for not taking his anti-HIV medication. Anthony Pitre said that prison officials reprimanded him by “subjecting him to hard labor in 100-degree heat.” Sotomayor believed that a constitutional issue was at stake: Pitre might have been able to demonstrate that his punishment was cruel and unusual. “To be sure, Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote, with no other justices signing on. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him.”
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Two years later, in the case of
Calhoun v. United States,
which the majority similarly refused to take up, Sotomayor objected to a prosecutor’s racially charged comment during trial. The prosecutor asked a witness, “You’ve got African Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a lightbulb doesn’t go off in your head and say, This is a drug deal?” The defendant argued that this remark violated his constitutional rights. The Supreme Court refused to accept his case, perhaps because he had not made this argument during an initial appeal. Although Sotomayor agreed with the Court’s refusal to consider the matter, she wanted to make sure people knew that the justices were not “signal[ing] our tolerance of a federal prosecutor’s racially charged remark.”
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She elaborated: “There is no doubt … that the prosecutor’s question never should have been posed … Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury.” With only Justice Breyer signing her opinion, Sotomayor wrote, “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice … I hope never to see a case like this again.”

It was difficult to read her words and not recall what she said about the slurs in the movie
12 Angry Men
—that she had heard about “those people” often in her life. Such experiences could not help but affect—to some degree—her idea about the place of law in America and what happens when the government fans the flames, as she said, “of fear and prejudice.”

In another dissent from the Court’s refusal to take up a defendant’s appeal, Sotomayor suggested that an elected judge in Alabama was playing politics when he ignored a jury’s decision to spare the life of convicted murderer Mario Dion Woodward and imposed the death penalty. The Supreme Court rejected Woodward’s petition, with only Sotomayor, joined by Breyer, dissenting. “In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts,” Sotomayor wrote. Why? she asked. “The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”
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She said one judge who had overridden jury verdicts and imposed the death penalty had touted his support for capital punishment during his campaign for the bench. Sotomayor underscored her point by attaching a list of ninety-five defendants who were sentenced to death by Alabama judges after juries had imposed life in prison.

A capital punishment case the justices agreed to take up,
Cullen v. Pinholster
, revealed Sotomayor’s concern for a defendant’s early troubled life and pitted her against an ideological opposite, Clarence Thomas. The legal question centered on the effectiveness of the trial lawyer who represented convicted murderer Scott Lynn Pinholster. A federal appeals court had overturned Pinholster’s death sentence after he claimed that the lawyer should have presented evidence to the jury of his mental problems and childhood trauma as mitigating evidence against the death penalty.
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The Supreme Court, on a 5–4 vote, reinstated the sentence. In emotionally charged opinions, Justices Thomas and Sotomayor presented two visions of the relevance of the defendant’s childhood, the sufficiency of state hearings on such evidence, and the federal oversight role. Thomas opened his opinion by describing how Pinholster had stabbed two victims to death and threatened to murder his accomplice if the accomplice went to the police. Thomas mentioned Pinholster’s childhood trauma in limited fashion. He and others in the majority said a deeper investigation into Pinholster’s background would not have made a difference in the jury’s sentence.

In contrast, Sotomayor, writing for dissenters, avoided the details of the crime and focused on the defendant’s troubled youth and how it could have significantly affected the outcome of the trial. Pinholster was “raised in chaos and poverty,” she wrote, noting that a relative saw the children mix flour and water for something to eat. Pinholster’s stepfather beat him regularly. The key question, Sotomayor said, was whether there was “a reasonable probability” that at least one juror would have struck a different balance if that background were known. “It is not a foregone conclusion, as the majority deems it, that a juror familiar with his troubled background and psychiatric issues would have reached the same conclusion regarding Pinholster’s culpability,” she wrote, adding that fair-minded judges could not conclude that at least one juror would have struck a different balance.

Responding sharply to her position, Justice Thomas called Sotomayor’s analysis “quite puzzling” and argued that her conclusions rested “on a fundamental misunderstanding” of the statute at issue in the case.

*   *   *

A year later, it was liberal justice Ginsburg who claimed that Sotomayor had a fundamental misunderstanding of precedent in a criminal case. The episode would become part of a pattern after a few years in which Sotomayor separated from her usual allies and went it alone—over harsh criticism that she was misguided. She alone dissented when, in January 2012, the Court ruled that trial judges need not subject suggestive eyewitness evidence to a special review unless the police officers involved engaged in misconduct. She was driven by doubts about the reliability of eyewitness identifications and by studies saying that they have been a source of convictions of innocent people.

Barion Perry was convicted of car theft after a woman said she saw him at the scene of the crime. The Supreme Court eight-justice majority said that it was enough that jurors were able to assess the reliability of the eyewitness evidence in the regular course of the trial. In a dissent, Sotomayor noted that Perry, the only African American at the scene, was talking with police when the witness identified him. “The Court’s holding enshrines a murky distinction,” she insisted, “between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion.”
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Sotomayor’s characterization of the Court’s departure from precedent and her reliance on social studies about misidentifications particularly riled Ginsburg, the senior justice on the left. Joined by the remaining seven colleagues, Ginsburg objected to Sotomayor’s assertion that the majority had applied a “significant limitation on our long-standing rule” about scrutiny for eyewitness identifications involving the police. Ginsburg noted that Sotomayor offered no prior case in which the Court had required pretrial screening absent any police-arranged identifications. “Understandably so, for there are no such cases,” Ginsburg observed. “Instead, [Justice Sotomayor] surveys our decisions, heedless of the police arrangement that underlies every one of them, and [invents] a ‘long-standing rule’ that never existed.”
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Being alone on the case and incurring such a heated rebuttal did not deter Sotomayor. Once she came to her own understanding of the correct approach to a dispute, she rarely budged.

During that same January, Sotomayor offered a unique approach to a dispute over modern tracking devices. As part of an investigation of Antoine Jones, a Washington, D.C., nightclub owner suspected of drug dealing, police had placed a GPS tracker on a car owned by Jones’s wife.
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Based on some of the evidence gathered, Jones was convicted of conspiring to distribute and possess cocaine. The U.S. Court of Appeals for the D.C. Circuit overturned the conviction, ruling that admission of evidence from the warrantless use of the GPS device violated the Fourth Amendment, which prevents the government from engaging in “unreasonable searches and seizures.”

The Supreme Court agreed that the attachment of a tracking device was a “search” by a 9–0 vote. But the justices splintered in their rationale, with Sotomayor playing an intriguing role. Writing for a five-justice majority that included Sotomayor, Justice Scalia said that the affixing of the GPS to the vehicle violated the Fourth Amendment based on eighteenth-century notions of trespass. Sotomayor, who had given Scalia the key fifth vote for that rationale, then wrote separately to suggest that the Court may need to develop a new notion of informational privacy that matches the times. In her concurring statement, signed by no other justice, she emphasized that preventing physical intrusion (the traditional focus of anti–search and seizure protections) might not be enough to ensure privacy in the digital age. She pointed out that technological advances allowed the government to monitor people without actually intruding on their person or property and asserted that it might be time for the Court to reexamine the way it analyzed Fourth Amendment protections in the area of electronic surveillance.

Some academic commentators, including George Washington University law professor Jeffrey Rosen, an early skeptic, deemed her approach prophetic, particularly after it emerged that the United States government was broadly collecting telephone and other digital data on Americans.
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Yet Sotomayor was not a natural favorite of the legal elite. That was where Elena Kagan came in. President Obama had chosen his U.S. solicitor general for his second appointment to the Court, to succeed Justice John Paul Stevens. True to Lawrence Tribe’s prediction when he urged Obama to appoint Kagan over Sotomayor in 2009, Kagan quickly became a strategic force on the bench. A former law clerk to Justice Thurgood Marshall, she was deft during oral arguments, adroitly inserting herself into the flow as Sotomayor routinely interrupted. Kagan’s written opinions were taut. She wrote in sharp declarative sentences with rhetoric that was not overtly flashy but memorable nonetheless.

The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.
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Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence.

Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?”

Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.

Perhaps an alternative comparison revolved around Sotomayor’s stature on the Court and off it. At the marble enclave she was one of nine, among the most junior and not known for her persuasiveness. But beyond its walls, she was magic. She was the Hispanic who had reached the absolute top of the exclusive world of the judiciary.

There was no denying her ongoing rise as a national figure. During her first year on the Supreme Court she was number three on CNN’s list of “The 10 Most Intriguing People of 2009,” behind President Barack Obama and First Lady Michelle Obama.
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There was plainly a national appetite for her story. Two other groundbreaking justices had written autobiographies—Sandra Day O’Connor, after she had reached the twenty-year mark on the Supreme Court, and Clarence Thomas, after he had reached fifteen years. But right from the start, Sotomayor knew she should write hers.

Within a year of her confirmation she signed a $3 million deal with the Knopf Doubleday Publishing Group to tell her life story. When the publication was announced, editor in chief Sonny Mehta said of Sotomayor’s life, “Hers is a triumph of the Latino experience in America.”
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