Law Vs. Fallacy: The Jurisprudence Of Justice Sotomayor


I haven’t been moved to do the research, but I would not be surprised if Barack Obama is owed the prize for the worst nomination for the U.S. Supreme Court ever to be confirmed by the Senate. That would be Sonia Sotomayor, the self-described “wise Latina” who was picked using the same criteria that led to Joe Biden choosing Kamala Harris as his VP: checking the right boxes. Obama was seeking a Hispanic judge (another first!) and a woman, but managed to choose a judge with weak credentials whose selection insulted better judges, female judges and Hispanic judges who were more qualified than her, and there were a lot of them. Since her confirmation, Sotomayor has introduced touchy-feely “compassionate” arguments exactly where they should never show their mushy heads: in Supreme Court oral arguments and opinions. Some of her opinions read as if they were composed by anyone with a law degree, though her law clerks are expert at stuffing them with the requisite number of case cites for appearances sake.

The latest example of Soromayor’s sentimental hackery was her dissent in the case of U.S. v. Dustin John Higgs, in which the Court, by a 6-3 vote (guess the three!) turned down the writ of certiorari of a man convicted of kidnapping and murdering three women, and sentenced to death. Justice Sotomayor began,

After seventeen years without a single federal execution,the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

Such an approach is a logical fallacy called “appeal to emotion.” That’s not law, that’s sentiment, assuming one is moved to tears by the idea of multiple convicted murderers finally being executed after years of expensive appeals and stalls. Sotomayor seems to think the fact that the “Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades” and that it was 17 years before the Trump administration did what should have been done all along has more than trivia value. So what? The U.S. has a death penalty, and finally has decided to follow through on it. Good.

That the Justice chose this as her introduction tells us all we need to know about her biased and unprofessional perspective. She’s not looking at the law, she’s looking at using the law to advance an agenda. The latter part of her dissent—her law clerk did a pretty good job—is a useful compendium of all the ways and arguments defense lawyers use to drag out death sentence executions for years, decades, or forever.

But it’s clearly just Sotomayor talking when she writes,

Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale. 

This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not.

No, what isn’t justice is forcing the state to pay millions in taxpayer funds that is desperately needed elsewhere to keep convicted psychopaths and predators alive while they avoid the sentences handed down after fair trials and due process.


  • Every condemned prisoner has “credible claims for relief” right up until he or she dies.
  • Even lifting stays of execution!  The Horror! Yes, that’s because the judges like Sotomayor scattered around the courts of the nation also object to capital punishment on emotional, sentimental and other non-legal grounds, and will stay any execution if given the chance.
  • Every one of the individuals Sotomayor named has had multiple opportunities to have his or her claims “meaningfully aired.” Dustin John Higgs, for example, kidnapped and murdered Tamika Black, 19,Tanji Jackson, 21, and Mishann Chinn, 23, in January 1996, 25 years ago. Poor Corey Johnson, just to pick another of the Justice’s names at random,  murdered Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne in 1992, 29 years ago.
  • “Some measure of restraint!” Twenty-nine years isn’t restraint, it’s paralysis.
  • Another howler: Very few of these decisions offered any public explanation for their rationale.” Every one of these people received fair trials where the evidence overwhelmingly proved to a jury beyond a reasonable doubt that they  were guilty of brutal murders and had forfeited the right to live in a civilized society. No more public explanation is needed.

14 thoughts on “Law Vs. Fallacy: The Jurisprudence Of Justice Sotomayor

  1. What pains me is that in that 29 years, either President Clinton or President Obama had a combined 13 years to end the federal death penalty. Instead, they played political games and stalled the executions indefinitely.

    After two different Democratic presidents made no effort to repeal or narrow the death penalty, it is big bad Trump’s fault that these executions have resumed. If waiting in limbo for an execution is so unjust (and if outright repeal were so politically impossible) either Clinton or Obama could have commuted their sentences to life in prison, thereby forestalling republicans from resuming executions, but again they did nothing.

    • Yes. This. The failure of those two Democrat presidents to remove the death penalty was based on politics and nothing more. Like illegal immigration (and resolving the future those already here), they don’t want to actually fix anything; they want to keep these hot-buttons active to stir up voters when elections come around. If you resolve a problem you have to scratch around to find a new issue to turn into a problem and then make it a crisis. That takes time and there are only two years between elections.

      • It is even worse than that. In the Troy Anthony Davis case, there was some significant evidence that he had been set up (there is a decent chance the prosecution’s star witness and only eye-witness, was the actual murderer). Scalia insisted that the courts couldn’t free him because he had due process and being innocent wasn’t a criterion to overturn a conviction. A petition signed by Desmond Tutu, Jimmy Carter, Pope Benedict XVI, and many others was ignored and he was executed. Why didn’t Obama use this as a springboard to do away with the death penalty? Why didn’t he start an Innocence Tribunal, as suggested by Rhenquists’ comments in the similar Herrera v. Collins case?

        Why? He didn’t really care. Despite the executions, Trump appears to care more about criminal justice reform than Obama ever did. Kim Kardashian did more for criminal justice reform than Obama ever did (now that is a sentence I never thought I would write).

        • In the Troy Anthony Davis case, was there evidence he was innocent? He and his defense team had ample opportunity to present evidence of his innocence but the federal district court hearing that evidence concluded that it was insufficient to raise doubt as to his innocence. For some reason, his defense team didn’t put witnesses who had recanted their prior testimony on the stand, instead relied on their affidavits. Additionally, the guy they said actually killed the police officer never actually testified, only swore an affidavit that Davis didn’t shoot the officer. Consequently, the federal district upheld the conviction, which SCOTUS affirmed. If the Obama Administration truly believed Davis was a victim of miscarriage of justice, St. Barack could have commuted/pardoned him but he chose to do nothing. Imagine that.


          • From what I read, 7 of the 9 witnesses later testified that they were pressured to testify by police and they said what they were told to say. They actually witnessed nothing. Three of them also testified that the ‘star’ witness told them later that he did it. Those 7 people were threatened with perjury for recanting their testimony. In the account I read, the witness they are suggesting was the actual killer did testify and testified tha he had a loud argument with the victim just before his death and owned the type of handgun that killed the victim (the weapon was not recovered).

            Now, journalists lie and lawyers often can’t make a decent case with the facts.

      • I don’t think it needs fixing – it needs to be sped up. I wouldn’t mind if it worked like it did for Giuseppe Zangara, who tried to kill FDR on February 15, 1933. He failed, but he did get Mayor Anton Cermak of Chicago. Cermak died on March 6, 1933, on March 20, 1933, Zangara went to “Old Sparky” in Florida and Pzzzzzzzt! Fzzzzt!

        • I agree completely.

          By the way, my research indicates that Zangara really was trying to kill Cermak, not FDR, but it makes a better story to tell it otherwise (like in “Assassins”). Zangara was a marksman, and he had a clear shot at Roosevelt if he wanted to kill him.

    • Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1994 in the wake of the first WTC bombing, and then-Senator Joe Biden helped craft the legislation. Clinton wasn’t doing away with the Federal death penalty. Obama’s own AG sought and won the death penalty against the Boston bomber. He wasn’t doing away with it either. No politician in his right mind is going to commute a death sentence unless he isn’t facing the voters and repeals, like those in NJ or Colorado are often either done when there can’t be a political price (like after an election), or when everyone is distracted (like by COVID).

      Biden wants to end the practice now, supposedly, and is going to financially induce states to do away with the practice, supposedly. The squad wants him to go big and forbid the DOJ from seeking the death penalty under any circumstances, like these new prosecutors who might as well be called criminal enablers instead. We’ll see how long that lasts. All it’s going to take is going to be one major something on his watch, with victims and their families baying for blood, and he’s going to quietly retreat from that, I think.

  2. Every one of the individuals Sotomayor named has had multiple opportunities to have his or her claims “meaningfully aired.” Dustin John Higgs, for example, kidnapped and murdered Tamika Black, 19,Tanji Jackson, 21, and Mishann Chinn, 23, in January 1996, 25 years ago. Poor Corey Johnson, just to pick another of the Justice’s names at random, murdered Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne in 1992, 29 years ago.

    The late Justice Scalia points out that this delay is due to judicial sabotage.

    Of course, this delay is a problem of the Court’s own making. As Justice Breyer concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. Post, at 18. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. Id., at 19. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)—a task for which we are eminently ill suited. Indeed, for the past two decades, Justice Breyer has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, Justice Breyer uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” Post, at 33–39. (A caution to the reader: Do not use the creative arithmetic that Justice Breyer employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.)

    If we were to travel down the path that Justice Breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop, should be overruled. That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind. Justice Breyer’s dissent is the living refutation of Trop’s assumption that this Court has the capacity to recognize “evolving standards of decency.” Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minor-ity of this Court has insisted that things have “changed radically,” post, at 2, and has sought to replace the judgments of the People with their own standards of decency.

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