Justice Sotomayor’s Comments on Denial of Certiorari

Usually when the Supreme Court denies certiorari, there is no comment at all from the justices. No one has way of knowing why the case was denied or what the justices thought about lower courts’ the decision. On Monday, February 25, however, when the Supreme Court denied certiorari in the case of Calhoun v. United States, Justice Sotomayor (joined by Justice Breyer) issued a statement. Justice Sotomayor agreed with the Court’s decision not to take the case but she was so appalled by the facts of the case that she felt compelled to comment.

In Calhoun, the prosecutor in a drug trial used explicitly racial stereotypes to try to establish that the defendant was lying when he denied he knew that the people he was with were engaged in drug dealing. “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a light bulb doesn’t go off in your head and say, This is a drug deal?”, the prosecutor said. As Justice Sotomayor explained, our country has a long and sorry history of racial prejudice playing a role in criminal justice. Here, the prosecutor “attempt[ed] to substitute racial stereotype for evidence, and racial prejudice for reason.” Justice Sotomayor also took the government to task for its conduct on appeal in this case.

Nonetheless, Justice Sotomayor agreed that the Court should not grant certiorari because the issues were not properly preserved or presented. However compelling the facts and legal arguments of a case, the Supreme Court is unlikely to grant certiorari if there is what Court insiders call a “vehicle problem” — a jurisdictional or procedural problem, such as a waiver, that might keep the Court from reaching the merits of the case. Despite this vehicle problem, however, Justice Sotomayor sent a strong message, particularly in her concluding sentence: “I hope never to see a case like this again.”