Justice Sonia Sotomayor. Credit: Jason Doiy/ ALM

U.S. Supreme Court Justice Sonia Sotomayor on Monday resorted to the words of a French author to express her displeasure with the high court's repeated refusal to take up death penalty cases from Florida.

“Toutes choses sont dites déjà; mais comme personne n'écoute, il faut toujours recommencer,” she wrote in a footnote in her dissent from the denial of certiorari in Cozzie v. Florida. The English translation of the 1892 maxim by French writer Andre Gide is: “Everything has been said already; but as no one listens, we must always begin again.” (Sotomayor included the translation.)

In a separate unsigned opinion Monday in Kisela v. Hughes, Sotomayor wrote another dissent expressing similar frustration—though not in French—with the court's penchant for summarily granting police qualified immunity in civil rights cases, without full briefing and oral argument. The court's opinion ran eight pages and Sotomayor's dissent was 15 pages long.

“As I have previously noted,” Sotomayor wrote, “this court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

Justice Ruth Bader Ginsburg joined Sotomayor's dissent in the qualified immunity case, but in the capital punishment case, Sotomayor was alone.

Sotomayor's Monday dissents fit her longtime practice of speaking out in cases in which defendants, in her view, are given short shrift. In her 2014 book about Sotomayor, author Joan Biskupic wrote about the justice's “concern for criminal law procedures. Sometimes her liberal colleagues would be with her, but often she was alone.”

In the Cozzie case on Monday, Sotomayor noted that twice before, the court had turned away capital case appeals from decisions by the Florida Supreme Court “in cases where that court failed to address a substantial Eighth Amendment challenge to capital defendants' sentences.” She said the Florida court was not adequately taking into account her 2015 decision in Hurst v. Florida invalidating aspects of Florida's death penalty scheme.

As for the Kisela case, Sotomayor recited the facts of a 2010 episode in which a Tucson, Arizona, police officer shot and wounded a woman who was carrying a kitchen knife. By summarily siding with the police officer, she said, the court “misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield.”

The high court's actions, she added, “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

University of Chicago Law School professor William Baude, whose article about the court's qualified immunity cases was cited by Sotomayor, said Monday that Sotomayor was right in asserting that “even if qualified immunity is settled doctrine, that doesn't mean the court has to summarily reverse every fact-bound case that finds a police officer liable.”

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