I saw Justice Sonia Sotomayor twice on Monday night.
Not in person, but on the big screen during my first post-pandemic venture into real movie going. She first made a cameo appearance in the trailer for a documentary about the career of the actress Rita Moreno, “Just a Girl Who Decided to Go for It.” And then, early in the feature film itself, “In the Heights,” her image flashed by when a little girl added the justice’s name to a list of Latina role models.
As we left the theater, I turned to my husband for a reality check. Was it my imagination, or did we really just see Justice Sotomayor twice? I had been thinking about her all afternoon, after reading her concurring opinion in a decision the Supreme Court issued that morning. I needed assurance that I hadn’t simply projected my mental image onto the movie screen.
Clearly, after 12 years on the court, Justice Sotomayor has entered cultural icon territory, reminiscent of the status Justice Ruth Bader Ginsburg achieved before her death last September. But I want to emphasize another, perhaps underappreciated source of Justice Sotomayor’s distinction. She has become the Supreme Court’s truth teller.
That’s what she was this past fall and winter, as the court passively permitted or actively facilitated the Trump administration’s amazing “expedited spree of executions,” in her words: 13 in its final six months, the last one just four days before President Biden’s inauguration.
Justice Sotomayor was not alone in dissenting from the court’s refusal to grant stays of execution or from its decisions to lift stays that lower courts had granted; Justice Stephen Breyer and Elena Kagan often dissented as well. But it was Justice Sotomayor, dissenting from the court’s go-ahead for the final execution, of Dustin Higgs, who insisted on naming each of the 13 and noted that the federal government had executed “more than three times as many people in the last six months as it had in the previous six decades.”
The case the court decided unanimously on Monday in an opinion by Justice Clarence Thomas lacked the drama of an imminent execution. Even though the small-time cocaine dealer who brought the case lost his Supreme Court appeal, he is scheduled to be released from federal prison in September anyway. The question was whether the inmate, Tarahrick Terry, and thousands of others in his position could benefit from a 2018 federal law called the First Step Act. The law was part of an ongoing effort to address the disastrous consequences of the decades-long extreme disparity between sentences for cocaine in its crack and powder form, with crack having been punished 100 times more severely for the same quantity. Congress in 2010 reduced the ratio from 100:1 to 18:1, and the 2018 law made that change retroactive and authorized federal judges to reduce sentences for some crack offenders.
Mr. Terry’s problem was that he had been sentenced in 2008 under a part of the original law intended for lower-level offenders. Under that section, there was in fact no disparity between crack and powder. Congress may well have intended in the First Step Act to make sentence reductions available to this group as well but, as Justice Sotomayor wrote, “Unfortunately, the text will not bear that reading.” She added: “Fortunately, Congress has numerous tools to right this injustice.”
The Supreme Court: Upcoming Cases
- A Big Month. June is peak season for Supreme Court decisions. It is the final month of the court’s annual term, and the justices tend to save their biggest decisions for the term’s end.
- 4 Big Cases. The court is set to rule on the fate of Obamacare, as well as a case that could determine scores of laws addressing election rules in the coming years. It is also taking on a case involving religion and gay rights and one on whether students may be disciplined for what they say on social media (here’s an audio report on that subject; and here’s where public opinion stands on several of the big cases).
- What to Watch For. The approaches that Amy Coney Barrett, the newest justice, and Brett Kavanaugh, the second-newest, take. They will be crucial because the three liberal justices now need at least two of the six conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the liberals needed only one conservative.
- Looking Ahead. Next year’s term, which will start in the fall, will have cases on abortion, guns and perhaps affirmative action, and could end up being the most significant term so far under Chief Justice John Roberts.
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