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Sotomayor Emerges as Heir to Marshall in Death Penalty Dissents

Jan. 22, 2021, 9:45 AM

Justice Sonia Sotomayor has issued several pointed rebukes of how her colleagues are treating death-row inmates in recent months, as she emerges as the late Thurgood Marshall’s heir as the most forceful dissenting voice in capital cases.

Marshall, who founded the NAACP Legal Defense & Educational Fund and served as U.S. solicitor general and then justice from 1967-1991, frequently dissented in capital cases alongside fellow death penalty critic William Brennan or did so alone. Both justices thought the death penalty was always unconstitutional and would dissent together on those grounds.

Sotomayor has been going it alone, sometimes alongside other Democratic appointees like Stephen Breyer, in pointing out what she sees as a majority giving short shrift to inmates’ claims.

Death penalty lawyers see a continuity between the first Latina and Black justices when it comes to the ultimate punishment.

“Broadly stated, it is clear that Justice Sotomayor is carrying forward Justice Marshall’s legacy with respect to death penalty jurisprudence,” said Samuel Spital, director of litigation at LDF. Sotomayor likewise “speaks truth to the ways in which the majority of the court is disregarding its own rules, its own procedures in order to expedite executions.”

President Joe Biden said he intends to eliminate the federal death penalty after the Trump administration resumed executions last July for the first time in 17 years. But capital cases are pending on the high court’s docket, and states like Texas have upcoming scheduled executions.

The conservative-liberal divergence on the Supreme Court over capital punishment has widened in recent months from 5-4 to 6-3 since Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg.

Sotomayor’s most recent dissent came Jan. 15, as the Republican-appointed majority condoned the Trump administration’s last of 13 executions since July. As it did with the other federal executions, the majority let Dustin Higgs’ lethal injection proceed before his legal claims were fully resolved. He was sentenced to death for three 1996 murders; his co-defendant who pulled the trigger received a life sentence.

In her 10-page dissent, Sotomayor criticized the majority’s conduct during the “expedited spree,” as she called it. The majority “has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised,” she said.

The inmates “deserved more from this Court,” Sotomayor said in the dissent. “This is not justice,” she said.

The majority didn’t explain why it vacated the stay put in place for Higgs by a lower court, or why it reversed the district court ruling in his favor before the appeals court ruled. Appeals court argument had been set for Jan. 27, by which time Biden would be in office and in a position to call off the execution.

The majority did write a short, unsigned opinion in July, when it vacated a district court injunction against the first set of executions. The injunction was put in place based on inmates’ claims that the government’s lethal injection protocol violated the Eighth Amendment’s ban on cruel and unusual punishment.

Citing its 2019 method-of-execution ruling in Bucklew v. Precythe, which also split 5-4 along party lines, the majority said in July that it’s the court’s responsibility to ensure challenges are resolved “fairly and expeditiously,” so that the question of capital punishment remains with “the people and their representatives, not the courts.”

Dissenting then, too, joined by Ginsburg and Justice Elena Kagan, Sotomayor said the majority not only rushed but bucked precedent. “In its hurry to resolve the Government’s emergency motions, I fear the Court has overlooked not only its prior ruling, but also its role in safeguarding robust federal judicial review,” Sotomayor said in July.

Breyer wrote his own July dissent, joined by Ginsburg, in which he questioned the constitutionality of the death penalty, as he had done before. Breyer wrote a similar dissent Jan. 15.

And though Sotomayor didn’t join that broader questioning of the death penalty, in her solo Jan. 15 dissent, as in her solo dissent in another federal execution case the month prior, she took pains to lay out, in her view, how the justice system failed the inmates.

“She is the voice calling out in the wilderness,” said death penalty expert Margery Koosed, professor emeritus at the University of Akron School of Law. “She has some of Brennan and Marshall flowing through her,” Koosed said.

Both Spital and Koosed said Sotomayor’s calling out the majority is reminiscent of Marshall’s 1991 dissent in Payne v. Tennessee, authored after Brennan retired in 1990 and joined by Justice Harry Blackmun.

There, too, Marshall accused his colleagues of operating outside of the law and tossing precedent in the process.

“Power, not reason,” Marshall said, “is the new currency of this Court’s decisionmaking.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at