For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices. That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual. In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week. I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.
That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list. After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied. But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari
In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:
Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur. For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....
Prosecutors wield an immense amount of power, and they do so in the name of the State itself. That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice. Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense. Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience. Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.
In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:
I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging.... The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....
The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering. Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical. See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878. Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.” Bucklew, 587 U. S., at ___ (slip op., at 13). If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....
Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.
UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari." Even so styled, she notably did not get any other Justice to sign on.
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