Friday, November 5, 2010

Greenhouse on Sotomayor and Dissents from Certiorari

Linda Greenhouse has a worth-reading column that begins by referencing the revelation of ConLawProf Larry Tribe's initial dismissal of Sotomayor in a letter to Obama but soon rises to an insightful analysis of Sotomayor's career as a Justice so far.

Picture 2 Greenhouse focuses on the Court's criminal docket, noting that so far Sotomayor "was second only to Justice Stevens in voting on the side of the criminal defendant."   Of course, Sotomayor's dissent last term in Berghuis v. Thompkins merits a mention.  And unspoken is the departure of Stevens, which presumably makes Sotomayor the most sympathetic Justice to claims by criminal defendants. 

But it is Sotomayor's dissent from a denial of a certiorari grant - - - in the context of such dissents - - -  that proves most interesting.  Greenhouse contends that the Roberts Court has seen the revival of individual justices issuing dissenting opinions from the Court’s denials of certiorari, a practice that had shriveled under Rehnquist but which has been embraced by Roberts himself.   Greenhouse highlights Sotomayor's dissent in Pitre v. Cain, a prisoner's pro se petition.  While Sotomayor's dissent seems compelling, Greenhouse concludes it is the kind of case which the Court usually does not hear because it would simply correct the error of the Fifth Circuit and be dispensing "retail justice."

Lest this be interpreted as implying Sotomayor is a "retail Justice" herself, Greenhouse quickly compares Sotomayor's dissent to a dissent issued Monday by Alito, Roberts, and Scalia, from the denial of certiorari in Wong v. Smith, the grant of a habeas petition by the Ninth Circuit.  The Court, the dissenters wrote, should hear the case to "correct the Ninth Circuit’s error."

"Error-correction to the left, error-correction to the right," Greenhouse writes, which is accurate Court-wise, if not reflective of a wider Left/Right politics in which describing Sotomayor, a former federal prosecutor, as "left" seems odd.  But what is certainly true, as Greenhouse reminds us, is that ConLawProfs should be paying attention to those dissents from denial of certiorari.

RR

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