The Conservatives vs. Sonia Sotomayor

The liberal justice has become a lonely voice fighting against the Supreme Court’s rightward turn.

U.S. Supreme Court Justice Sonia Sotomayor looks on before administering the oath of office for Attorney General Loretta Lynch at the Warner Theatre on June 17, 2015, in Washington.
Justice Sonia Sotomayor. Photo illustration by Slate. Photo by Olivier Douliery - Pool/Getty Images.

On Monday morning, the U.S. Supreme Court made the American criminal justice system a little less just. First, the court granted immunity to a police officer who shot a woman four times because she was holding a kitchen knife. Second, the court rejected an appeal from two capital defendants in Florida who argue, quite plausibly, that they were sentenced to death in violation of the Constitution. Justice Sonia Sotomayor dissented from both decisions in a pair of opinions seething with indignation at her colleagues’ solicitude for violent cops and indifference toward death row inmates. Her dissents illustrate a galling asymmetry in the court’s jurisprudence. Powerful defendants get a quick helping hand. Powerless ones get screwed.

Start with the court’s indefensible decision in Kisela v. Hughes. The case involves yet another dispute over qualified immunity, which insulates government officials from lawsuits unless they violate an individual’s “clearly established” rights. Under this doctrine, police officers may not be sued for use of excessive force so long as their actions are “objectively reasonable in light of the facts and circumstances confronting them.” Qualified immunity has no basis in either the Constitution or federal statute, but courts have nonetheless used it aggressively to shield officers from liability.

In Kisela, a police officer, Andrew Kisela, received a call about a woman chopping at a tree with a knife. When he arrived, he saw Amy Hughes standing about 6 feet away from her roommate outside of their house. Hughes was holding a kitchen knife at her side; the blade pointed away from her roommate, and she did not appear to be threatening her. Instead, she looked “composed and content.” She was not suspected of any crime. Kisela, along with an officer in training and a third officer, was separated from Hughes by a chain-link fence. All three officers started shouting at Hughes to drop her knife. Then, without warning, Kisela dropped to the ground and shot Hughes four times through the fence. She fell, bleeding and screaming in pain, and asked the officers, “Why’d you shoot me?”

Hughes survived the shooting and sued Kisela for using excessive force in violation of her Fourth Amendment rights. The 9th U.S. Circuit Court of Appeals sided with the gunshot victim, finding the officer wasn’t protected by qualified immunity. On Monday, in an unsigned per curiam opinion, the Supreme Court reversed the lower court’s decision. (It did so summarily, without briefs or oral arguments on the merits of the case.) The court pointed out that Hughes “had just been seen hacking a tree with a large kitchen knife” and that she “failed to acknowledge at least two commands to drop the knife.” It concluded that “this is far from an obvious case in which any competent officer would have known” that shooting Hughes would violate the Constitution.

Sotomayor, joined only by Justice Ruth Bader Ginsburg, dissented, accusing the court of warping the facts and the law to reach its desired result. The justice refuted her colleagues’ reasoning point by point, noting that Hughes was suspected of no crime, presented no immediate threat, and may not even have heard or understood the officers’ commands. Moreover, Kisela obviously could have used “less intrusive means before deploying deadly force”; an expert witness testified that he should have used his Taser, and another officer at the scene said he preferred to use “some of the lesser means” of force because there was time to “try to talk [Hughes] down.” All of these factors counsel against qualified immunity. Yet the court, without full briefing, gave it to Kisela anyway.

Why? With remarkable candor, Sotomayor made the case that her colleagues care more about police officers than they do about the victims of police brutality. “The Court decides to intervene prematurely,” she wrote. “This unwarranted summary reversal is symptomatic of ‘a disturbing trend regarding the use of this Court’s resources’ in qualified-immunity cases.” While the court “displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity,’ ” it “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” Sotomayor concluded:

Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.

The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.

Sotomayor has criticized “shoot first, think later” policing in the past. But her Kisela opinion is especially poignant in light of its pairing with a second Sotomayor dissent that was released on Monday, this one on a capital punishment case out of Florida. In 2015, the Supreme Court invalidated Florida’s strange death penalty scheme, which allowed juries to recommend life or death but let the judge make the final call. The court found that the jury, not the judge, must find the facts necessary to sentence a defendant to death. In response, the Florida Supreme Court transformed juries’ recommendations into binding factual findings that make the defendant death-eligible.

That, however, creates a new problem: The Supreme Court has also ruled that a capital sentence is unconstitutional when the “sentencer … has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Thus, by purporting to resolve one constitutional flaw, the Florida Supreme Court created another one, retroactively saddling a jury with the responsibility of a death sentence that it had recommended but did not expect to be binding.

The Florida Supreme Court has consistently disregarded this dilemma of its own creation. And the U.S. Supreme Court has consistently declined to step in and settle the issue, even though Florida’s death row inmates keep appealing. Each time the court fails to act, Sotomayor writes a dissent denouncing its apathy. On Monday, Sotomayor made her case all over again, pointing out that “at least six capital defendants” now “face execution by the State without having received full consideration of their claims.”

To drive home her frustration, Sotomayor cited André Gide, a gay French novelist and critic who won the 1947 Nobel Prize in Literature. “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer,” she wrote in a footnote, quoting Gide. Translation: “Everything has been said already; but as no one listens, we must always begin again.”

The quote neatly captures Sotomayor’s jurisprudential philosophy at this rather dark moment in American law. In case after case, the court insulates the powerful from the consequences of their actions, then ignores the pleas of vulnerable defendants who have nowhere else to turn. Sotomayor alone can’t reverse the trend. But she can object, time and again, even if her colleagues refuse to listen.