Alcala-Sotomayor parallels, divergence

Adam Liptak in the New York Times on Monday highlighted Justice Sonia Sotomayor's notable recent dissents in US Supreme Court cases regarding prosecutorial overreach and abrogation of individual rights by the criminal-justice system. He's right that she's been the best civil liberties champion on SCOTUS, so it's good to see that record illuminated and broadcast more widely beyond the narrow audience of people who read Supreme Court opinions.

For Grits, who falls in the even narrower audience of people who read Texas Court of Criminal Appeals opinions, it's hard not to read the story and see parallels to Texas' own Judge Elsa Alcala, whom Grits recently compared to a "black-robed, Latina John the Baptist" calling out like a lone voice in the wilderness decrying inequities in the appeals process. Both women came from relatively underprivileged backgrounds: Sotomayor was raised by a single mother, while Alacala, one of five children, lost both parents at age 14. If you squint, they even look a bit alike:

Top: Sonia Sotomayor; Bottom: Elsa Alcala

Grits lately has praised Judge Alcala's calls for greater accountability for ineffective defense counsel, as well as her demand that the court recognize meaningful recourse via habeas corpus for indigent defendants whose lawyers severely under-performed. But I could have also mentioned the case for which she received much more press attention - a recent dissent questioning the wisdom of the death penalty, as written up by the Austin Statesman, Fusion, and US News and World Report. Among the money quotes:

• “In my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today.” 
• “[T]he time has come for this Court to reconsider whether the death penalty remains a constitutionally acceptable form of punishment under the current Texas scheme.”
• "Given both state and federal case law and the history of racial discrimination in this country, I have no doubt that race has been an improper consideration in particular death-penalty cases, and it is therefore proper to permit (Murphy) the opportunity to present evidence at a hearing about the specifics in his case." 

Judge Alcala speaks softly but carries a big stick. She's one of the less prolific opinion writers on the court - ranked fifth in the total number of opinions written in 2015, according to the Office of Court Administration (see bottom of p. 4 of this report). But she wrote the third most dissents. She authored 37 opinions in 2015, including six dissents. By contrast, Presiding Judge Sharon Keller was the court's most prolific writer, with 69 opinions, including 14 dissents.* Here are the total dissents authored by each Texas CCA member in FY 2015:

The Dissenters (TX CCA)

Meyers: 19

Keller: 14
Alcala: 6
Johnson: 5
Keasler: 2
Yeary: 2**
Newell: 2**
Hervey: 0
Richardson: 0**

However, Meyers' and Keller's recent dissents haven't been as memorable or important as, say, Judge Alcala's January concurrence from Ex Parte Robbins in which she called out her colleagues by name for gaming the process to undermine the state's junk science writ. Her and Keller's opinions have defined the terms of debate on major issues facing the court to a remarkable extent. Boosting the entertainment value significantly, they're each prone to disagree on the issues the other is most passionate about.

Judge Alcala loses an important ally on the court this year with Judge Cheryl Johnson retiring. They've frequently tag-teamed in opposition to Keller and Co.. With Johnson gone, Alacala faces a particularly hostile environment, confronting long-time judges used to ruling the roost who at times seem resentful at her impertinence for, I guess, expressing an opinion.

Along with Judges Keller and Hervey, Alcala's term expires in 2018. Between now and then, however, the court will undergo a major transition, with Mary Lou Keel and political unknown Scott Walker joining the court in January. Grits fears one or both will provide an additional vote for the government-always-wins faction, which presently includes Keller, Hervey, Keasler, and Yeary. Those four votes are reliably for the state almost no matter what the circumstance. So on any given issue, they only need to pick off one vote for that faction (and thus the government) to prevail.

That dynamic shifts topic by topic. Judge Yeary, a devout practicing Catholic, has been known to divert from the fold on death penalty matters. And Presiding Judge Keller seems to have a much deeper understanding of First Amendment law than anyone else on the court, leading to some interesting pro-defense opinions when it came to the constitutionality of offenses like "online solicitation of a minor," etc.. So these are general observations, not a hard and fast rule.

But on most days, in most cases, that four-vote faction will hold. Right now, that's sometimes insufficient for them to prevail, as evidenced by the volume of Judge Keller's dissents. (Rookie Judge David Newell frequently finds himself the swing vote in a number of recent controversies.) If either Keel or Walker joins that reflexively pro-government judicial clique, the state will just win every time.

In the event this faction on the court does just begin to win everything, with no hope for Bill-of-Rights respecting conservatives to influence the process, one wonders: a) will Alcala want to stay on a court which has shifted so far toward a statist mentality? And b) if she did, would the same GOP which chose Donald Trump continue to truck with her? The times they are a-changin' in GOPprimarylandia.

Which brings us to the differences between Elsa Alcala and Sonia Sotomayor, two Latina judges from opposite ends of the political spectrum who both have passionately criticized unfairness and inequity in the justice system. Alcala is a Rick-Perry appointee with a conservative record who has since been elected as a Republican to Texas' high criminal court. But she resides in a political party in which large swaths do not particularly care, for example, about flaws she's observing up close in the administration of the death penalty. And her concerns about habeas corpus writs from poor people with ineffective trial counsel have so far mostly only penetrated among the most attentive appellate lawyers. Such important minutiae lie far beyond the public ken. Indeed, for the most part the public is unaware the Court of Criminal Appeals even exists, much less do they understand the particulars of what it does. By contrast, Sotomayor's SCOTUS work gets a lot more attention and public credit.

Justice Sotomayor is a member of SCOTUS for life, if she wants it. And depending on what happens in November, she may even find new allies on these issues.*** Judge Alcala, by contrast, must face both re-election and the prospect that the court will shift even further against her. Grits is confident Sotomayor will be on SCOTUS for many years, barring accidents or poor health. But Judge Alcala's good work may be a more short-lived blessing. Small-government advocates and civil libertarians should appreciate her while we have her, because you'll miss her once she's gone.

* Keller and Yeary each also had eight concurring/dissenting opinions; no other judge had more than one.
** Yeary, Newell and Richardson were only on the court for eight months of FY 2015, which ended 8/31/15.
*** As long as they don't re-nominate Merrick Garland.