NY Times:
At her confirmation hearings last year, Sonia Sotomayor spent a lot of time assuring senators that empathy would play no part in her work on the Supreme Court.
That was a sort of rebuke to President Obama, who had said that empathy was precisely the quality that separated legal technicians like Chief Justice John G. Roberts Jr. from great justices.
Justice Sotomayor would have none of it.
“We apply law to facts,” she told the Senate Judiciary Committee last year. “We don’t apply feelings to facts.”
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.
So far this term, the court has issued two signed decisions in argued cases. Both were unanimous, and both were insignificant.
But for anyone looking for insight into the justices, there was much more information to be gleaned from another genre of judicial writing. In the last three months, the court has turned down thousands of appeals, almost always without comment. On seven occasions, though, at least one justice had something to say about the court’s decision not to hear a case.
Such writings are completely discretionary, and they open a window onto the author’s passions. They are also a good way to keep track of the divisions on the court.
An ideological fault line ran through those seven opinions. Not a single member of the court’s four-member liberal wing joined any of the three opinions written by a conservative justice. And not a single member of the court’s four-member conservative wing joined any of the four opinions written by a liberal justice.
Justice Anthony M. Kennedy, the court’s swing vote, was the only justice to join none of the seven opinions, which simplified the analysis.
Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. 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.
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She is a liberal empathy maven who mislead her way through the confirmation process. A more realistic approach to Pitre would be to see him as using his condition to try to get out of work. If he took his medication he would not be having these problems. If Sotomire was not such a liberal dingbat she would recognize what he is doing to himself to mess with the prison system. It is hard to have respect for this kind of convoluted thinking.
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