Justice Sonia Sotomayor's dissent in a case this week involving the death penalty in Alabama was not aimed at public opinion, but it could be Exhibit A for why the nation's judiciary is falling in the public's estimation.
Sotomayor wrote a 12-page dissent when her colleagues refused to review the state's law that allows judges to overrule jury decisions on whether a defendant should be executed. She called it "an outlier" that might contradict the Constitution.
The Alabama case was concerned with Mario Dion Woodward, who was convicted of murder in 2008. The prosecution asked for the death penalty, but the jury voted 8 to 4 against it — finding that the state-asserted aggravating circumstances did not warrant capital punishment.
In almost every other state, the jury's decision would have been final — but not in Alabama. In Woodward's case, the trial judge overruled the jury and imposed the death penalty anyway, as the law permits.
As Sotomayor went on to point out, since Alabama adopted its current statute in the early 1980s, judges have overridden the jury's decision and imposed the death penalty in 95 cases, while decreasing the sentence to life imprisonment without parole in just nine cases.
What's more, Alabama is the only state whose judges have used a judicial-override sentencing statute in this way in the past decade. Florida and Delaware have similar statutes. In the early 2000s only one Delaware judge imposed a death sentence. That decision was appealed and reduced to a life sentence.
The worst part, according to Sotomayor, is the reason this only happens in Alabama: "The only answer that is supported by empirical evidence," she wrote, is that "Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures."
Those electoral pressures, she wrote, will lead to "curious and potentially arbitrary outcomes." And the arbitrary imposition of the death penalty, the court has held, offends the Eighth Amendment.
Sotomayor is not the only one who might harbor concerns about elected judges. Thirty-eight states elect their Supreme Court judges, and in a national poll released last month by Justice at Stake and the Brennan Center, 70 percent of respondents felt that it was a very serious problem when elected judges have received a contribution from an "individual, attorney, business, or interest group" presenting a case before them. In fact, 92 percent of respondents felt that judges should step aside in such cases.
Retired Justice Sandra Day O'Connor has consistently spoken out against judicial elections. Speaking at Fordham Law School in 2008, she said that "you're not going to get fair and impartial judges" if they are elected, and she noted that "no other nation in the world" holds judicial elections. In the Justice at Stake poll, respondents ranked impartiality and fairness as the second and fourth most important qualities in judges ("ethical" was first and "nonpartisan" third).
Alabama judges' record on the death penalty may well undermine belief in their impartiality and fairness, showing that they are yielding to electoral pressure rather than simply applying the law. And, according to Sotomayor, their decisions and comments show that they are using the death penalty as an electoral tool rather than as "an expression of society's moral outrage at particularly offensive conduct."
Only Justice Stephen Breyer joined portions of Sotomayor's dissent.