During Sotomayor’s first term, the same five-justice conservative bloc that had written Citizens United—Chief Justice Roberts, Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas—joined in a ruling that enhanced the right to own firearms. Again over protests from the four liberals, including Sotomayor, the Court said that gun owners could challenge state and city regulations that restricted gun possession. The majority declared that the Second Amendment right to bear arms was fundamental to American liberty and thus protected against local restrictions as well as federal regulation. Four Chicago homeowners had challenged a city law that banned handguns, saying they needed the guns for their personal safety in dangerous neighborhoods. The Court’s decision striking down the ban flowed from its 2008 ruling in District of Columbia v. Heller, which established the right to keep and bear arms under federal law.
Sotomayor’s dissenting vote in the new case of McDonald v. City of Chicago added to the evidence in her first term that she would be a reliable liberal vote. It also provoked critics who thought that her statements during Senate confirmation hearings should have led to an opposite conclusion. During that testimony in the summer of 2009 she had expressed support for the Supreme Court’s ruling in Heller. She testified that she understood “the individual right fully that the Supreme Court recognized in Heller … I understand how important the right to bear arms is to many, many Americans.”21
In that new case from Chicago, as she signed on to a dissent protesting the majority’s view that the right to keep and bear arms is fundamental to liberty, Justice Sotomayor felt no need to write a separate opinion to provide an explanation. In her earliest terms she rarely broke off—beyond criminal procedure matters—to offer a concurring statement about her position, even in cases in which she was more naturally in the spotlight, such as on affirmative action and immigration.
Some of her moves were subtle. She brought a nuanced sensitivity to immigrant rights in her first signed opinion. The case involved a shift supervisor at a manufacturing plant who was fired after telling the human resources department that the company was hiring illegal workers, or, as Sotomayor wrote, “undocumented immigrants.”22 She later said that she had called the workers in question “undocumented immigrants” because calling “them illegal aliens seemed … insulting.”23
Sotomayor’s first major immigration case tested an Arizona law that, among its provisions, required police to check the immigration status of people stopped for routine offenses and to detain those who did not have proper documentation. Civil rights groups said that the requirement, signed into law by Republican governor Jan Brewer in April 2010, could lead to racial profiling and prolonged detentions. Hispanic advocacy groups, including the Mexican American Legal Defense and Educational Fund, vigorously protested it. More than half of the nation’s estimated 11.5 million illegal immigrants were from Mexico. Critics of the law said that even people in the United States legally could be targeted because of their skin color and national origin. When the dispute came before the justices, however, it was not a constitutional dispute over racial profiling, but rather a test of state authority to enforce federal immigration law. The Obama administration was challenging all facets of the Arizona law, known as SB 1070, arguing that Congress, not individual states, should control immigration policy.24
As the Supreme Court hearing opened, Sotomayor was first in, firing a series of questions at Washington lawyer Paul Clement, a former U.S. solicitor general under President George W. Bush who was representing Arizona officials in their defense of the law. Sotomayor expressed concern that people stopped might end up in jail for long periods while local officers tried to check their immigration status. “What I see as critical is the issue of how long and … when is the officer going to exercise discretion to release the person,” she said.25
Sotomayor was equally skeptical with U.S. solicitor general Donald Verrilli, attacking the “show me your papers” provision as being in conflict with federal immigration policy. “You can see it’s not selling very well,” she told him. At another point she said, “General, I’m terribly confused by your answer. Okay?” She challenged the reliability of federal databases that police officers might use to determine whether someone stopped locally is in the United States legally.
In the end, Sotomayor joined an opinion that upheld the provision allowing police officers to check the legal status of people they stop for other violations of the law yet struck down the bulk of SB 1070’s disputed provisions. She and her colleagues viewed the stop-and-check section as reinforcing, rather than usurping, federal policy. Writing for a five-justice bloc that included Sotomayor, Justice Kennedy narrowly interpreted the provision’s reach. He warned authorities not to use the law to delay the release of people or to target minor offenders—for example, jaywalkers who cannot produce identification. The modest scope and tone of Kennedy’s opinion probably helped draw Sotomayor and the two other liberals, Ginsburg and Breyer. Chief Justice Roberts also joined the Kennedy opinion.
A majority, with Sotomayor, further declared that federal law preempted other provisions, including those that made it a state crime to be unlawfully present in the United States or to seek work without proper documentation. The justices highlighted the federal government’s role in immigration and largely rejected the effort by Arizona and other states to institute their own sweeping measures to stop people from illegally crossing the border. Civil rights advocates and President Obama focused on the part of the decision that did not go their way. “No American should ever live under a cloud of suspicion just because of what they look like,” Obama said in a statement.
If she were addressing a social policy matter rather than an issue of law, Sotomayor might have expressed similar sentiment. She did, in fact, tell students in Denver about crossing the border once with a dark-skinned Mexican American friend who was asked to get out of the car. Sotomayor believed the action might have stemmed from racial profiling. But as a jurist, she did not feel it was her place to elaborate on such views in a case.26
Nearly a generation behind the Court’s most famous groundbreakers, Sotomayor did not see herself as an advocate for a cause. She did not come up through the ranks of Hispanic groups as a visible activist for her people, as Ruth Bader Ginsburg had done with women’s rights. Sotomayor was not the leader who helped start the Puerto Rican Legal Defense Fund, as Thurgood Marshall had with the NAACP Legal Defense Fund. Marshall and Ginsburg accentuated broader group rights in their public writings and speeches rather than their personal experiences.
In the justices’ private conferences, Marshall often regaled his colleagues with experiences he gathered in service to a cause. He knew firsthand Klan violence, jury bias, and judges who had been bought off. He told of seeing “whites only” signs on restrooms and at drinking fountains as he traveled the South and of being warned to get out of town “cuz niggers ain’t welcome in these parts after dark.” That perspective prompted Justice O’Connor to write after Marshall retired, “His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them … His was the mouth of a man who knew the anguish of the silenced and gave them a voice.”27
Asked about the role Marshall played with his colleagues, Sotomayor said, “I am not a storyteller. I am not a flamethrower. That’s not who Sonia ever was. If you look at my life, it’s not that I don’t support those legal issues or principles. It’s not that the passion isn’t there. It’s that it’s always done in a lawyerly, judicial way. That’s who Sonia is. And it’s effective.”
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Sotomayor’s early opinions were narrowly crafted, as they had been on the Second Circuit. Most distinctive, in a substantive vein, was her support for the rights of defendants and her concern for criminal law procedures. Sometimes her liberal colleagues would be with her, but often she was alone. “What I view as driving my jurisprudence is process,” she said, telling audiences she wanted to ensure that people were given a fair chanc
e within the legal system.28
In her first term she was joined by fellow liberals when she wrote the lead dissent to a 2010 majority ruling that sided with police when suspects had not clearly invoked or waived their Miranda right to remain silent during interrogations. The case tested the circumstances of questions put to a murder suspect in Michigan, Van Chester Thompkins, who had stayed silent but did not affirmatively say he did not want to talk to police. Near the end of a three-hour interrogation, when asked if he prayed to God to forgive him for the shooting, he said, “Yes.” The trial judge refused to suppress the evidence during the trial, and Thompkins was convicted of murder. The Supreme Court majority upheld use of the statement at trial.29
Sotomayor, writing the first major dissent of her Supreme Court tenure, charged the majority with retreating from precedent that stood for the proposition that prosecutors have the burden of showing that a suspect had waived his rights. “Today’s decision turns Miranda upside down,” she said. “Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”30
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.31 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.”32
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.”33
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.”34 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.35
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.
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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.”36
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.”37
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