The Roles of Sonia Sotomayor in Criminal Justice Cases

• Author: Christopher E. - SmithKsenia Petlakh
• Position: Christopher E. Smith is a Professor of Criminal Justice, Michigan State University. A.B., Harvard University, 1980; M.Sc., University of Bristol (U.K.); J.D., University of Tennessee, 1984; Ph.D., University of Connecticut, 1988. Ksenia Petlakh is a Doctoral student in Criminal Justice, Michigan State University. B.A., University of Michigan-...
• Pages: 457-479

THE ROLES OF SONIA SOTOMAYOR

IN CRIMINAL JUSTICE CASES

CHRISTOPHER E. SMITH AND KSENIA PETLAKH*

I.!INTRODUCTION

The unexpected death of Justice Antonin Scalia in February 20161

reminded Americans about the uncertain consequences of changes in the

composition of the Supreme Court of the United States.2 It also serves as a

reminder that this is an appropriate moment to assess aspects of the last

major period of change for the Supreme Court when President Obama

appointed, in quick succession, Justices Sonia Sotomayor in 20093 and

Elena Kagan in 2010.4 Although it can be difficult to assess new justices’

decision-making trends soon after their arrival at the high court,5 they may

begin to define themselves and their impact after only a few years.6

Copyright © 2017, Christopher Smith and Ksenia Petlakh.

* Christopher E. Smith is a Professor of Criminal Justice, Michigan State University.

A.B., Harvard University, 1980; M.Sc., University of Bristol (U.K.); J.D., University of

Tennessee, 1984; Ph.D., University of Connecticut, 1988. Ksenia Petlakh is a Doctoral

student in Criminal Justice, Michigan State University. B.A., U niversity of Michigan-

Dearborn, 2012.

1 Adam Liptak, Antonin Scalia, Justice on the Su preme Court, Dies a t 79, N.Y. TIMES

(Feb. 1 3, 2016), http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html [https://

perma.cc/77BQ-TFEQ].

2 Adam Liptak, Supreme Court Appointment Could Reshape American Life, N.Y. TIMES

(Feb. 18, 2016), http://www.nytimes.com/2016/02/19/us/politics/scalias-death-offers-best-

chance-in-a-generation-to-reshape-supreme-court.html [http://perma.cc/F9QB-4UC5]; see

also Edward Felsenthal, How the Court Can Reset After Scalia, TIME (Feb. 25, 2016),

http://time.com/4236982/supreme-court-next-trial [https://perma.cc/2UQW-8BH5] (“It is

too early to tell, an d may even require undue optimism in this season of vitriol, but perhaps

Scalia’s departure will boost Roberts’ efforts” to enc ourage coherence and consensus

among the justices.).

3 Peter Baker & Jeff Zeleny, Obama Hails Judge as “Inspiring,” N.Y. TIMES

(May 26, 2009), http://www.nytimes.com/2009/05/27/us/politics/27court.html [ http://

perma.cc/T9CS-Q64Z].

4 Paul Kane & Robert Barnes, Senate Confirms Elena Kagan’s Nomination to Supreme

Court, WASH. POST (Aug. 6, 2010), http://www.washingtonpost.com/wp-dyn/content/

article/2010/08/05/AR2010080505247.html [http://perma.cc/9LT7-C34V].

5 Justice William O. Douglas contrasted the differences between what a mature,

experienced Supreme Court Justice might do and the actions of newcomers who are

“usually too unsure” to make the same decisions that they will make later in their careers.

WILLIAM O. DOUGLAS, THE COURT YEARS 1939–1975, at 45 (1980).

6 For example, five years into his career on the Supreme Court, Justice Clarence

Thomas had established an approach to decision making. Christopher E. Sm ith, Bent on

(continued)

458 CAPITAL UNIVERSITY LAW REVIEW [45:457

Questions necessarily remain thereafter about whether the new justice’s

values and approach will change over time.7

Justice Sonia Sotomayor was appointed to the Supreme Court in 2009

by President Obam a upon the retirement of Justice David Souter.8

Although she came to the Supreme Court from service as a federal

appellate judge, she had a unique breadth of experience with prior service

as a prosecutor and a trial judge, as well as several years in private law

practice.9 She is the lone Supreme Court justice in recent years who

previously served as a trial judge.10 In addition, along with Justice Samuel

Alito,11 she is one of only two justices with experience as a prosecutor.12

Thus, Sotomayor’s depth of exposure to criminal justice issues is

unsurpassed among contemporary Supreme Court justices.13 As described

by one commentator, “[o]nly Sotomayor has real experience with a local,

day-to-day criminal justice system” because she was a local prosecutor,

while Alito served solely as a federal prosecutor.14 Has this “real

experience” been evident in the performance and decisions of Justice

Original Intent, 82 A.B.A. J. 48, 48 (1996). Many aspects of this approach still defined his

role on the Court even after two decades on the high court. Christopher E. Smith, Rights

Behind Bars: The Distinctive Viewpoint of Justice Clarence Thomas, 88 U. DET. MERCY L.

REV., 829, 829–30 (2011).

7 See generally LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY

BLACKMUN’S SUPREME COURT JOURNEY (2005) (description of Justice Harry Blackmun’s

evolution as a decision maker during his career on the Supreme Court).

8 Baker & Zeleny, supra note 3.

9 Id.; Sheryl Gay Stolberg, Sotomayor, a Trailblazer and a Dreamer, N.Y. TIMES (May

26, 2009), http://www.nytim es.com/2009/05/27/us/politics/27websotomayor.html [http://

perma.cc/JS3Z-2FS4].

10 While serving as a judge on the United States Court of Appeals for the Seventh

Circuit in Chica go, Justice John Paul Stevens served as substitute trial judge for several

civil cases, but his experience as a trial judge lasted for only a few weeks. CHRISTOPHER E.

SMITH, JOHN PAUL STEVENS: DEFENDER OF RIGHTS IN CRIMINAL JUSTICE 78 (2015).

11 Daniel J. Wakin, A Prosecutor Known for His

Common Sense and Straightforward Style, N.Y. TIMES (Nov. 2, 2005),

http://www.nytimes.com/2005/11/02/politics/politicsspecial1/a-prosecutor-known-for-his-

common-sense-and.html [http://perma.cc/UC8C-MKE9].

12 Anthony S. Barkow, Commentary: Sotomayor the Crime Fighter, CNN (July 16,

2009), http://www.cnn.com/2009/POLITICS/07/16/barkow.sotomayor.prosecutor/index.

html?eref=rss_latest [http://perma.cc/MFU3-8FXX]; Radley Balko, The Supreme Court’s

Massive Blind Spot, WASH. POST (Jan. 22, 2015), https://www.washingtonpost.com/news/

the-watch/wp/2015/01/22/the-supreme-courts-massive-blind-spot [http://perma.cc/QJ25-

REJB].

13 Barkow, supra note 12.

14 Balko, supra note 12; Barkow, supra note 12.