From the Sentencing Law & Policy Blog,
Adam Liptak has this new New York Times piece headlined “In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’.” Here are brief excerpts:
The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night. There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.” The inmates who had filed the applications were put to death within hours.
In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake. That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine. She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied….
There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas…. “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case….
Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.