Sotomayor’s New Pattern in Dissenting Opinions

When President Obama chose Sonia Sotomayor in 2009 to succeed retiring Justice David Souter, some Court observers thought there was one area of the law in which she might actually be more conservative than Souter: defendants’ rights. Sotomayor is a former prosecutor who, as a lower court judge, voted regularly against prisoners’ challenges to their cases. But in her first term on the Supreme Court, she showed no signs of joining conservatives against defendants and in fact was notable among liberals in support of criminal rights, for example, in her dissenting opinion in Berghuis v. Thompkins.

And now as she separates herself from her colleagues to dissent publicly when some appeals are denied, she has focused on prisoners’ rights. A story I wrote for today’s paper looks at recent cases in which she dissented or voiced concerns when the majority spurned an appeal. Most of these were cases in which she believed the defendant deserved a break.

Jonathan Kirshbaum, who represents indigent defendants at a New York appellate litigation center and who was wary of Sotomayor’s appointment, told me he has been struck by her recent votes siding with prisoners and how much feeling she expresses in these opinions. Of her recent dissents when the majority rejects an appeal, he said, “They give the criminal defendant’s perspective on these issues.”

We’re always looking for signs of a new justice’s approach to the law and how she might affect the Court. Sotomayor’s dissents from denials of certiorari offer a pattern that helps define her. President Obama’s more recent appointee, Elena Kagan, has yet to write any opinions. But she has already shown herself to be a forceful presence on the bench during oral arguments. Here is my early take on Kagan, who – like Sotomayor — appears destined to easily find her voice among the nine and on the law.