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....
I agree with Sotomayor that when judges are subject to election, you don't get fair and impartial judges. This practice of allowing the judiciary to disturb jury findings of fact, and not findings of law, violates concepts of fundamental fairness while not necessarily violating the constitution.
There are arguments to be made against this practice under the 5th, Sixth Eighth and Fourteenth Amendments. I would advance an argument that such a judicial practice where without an error of law a jury verdictof life imprisonment is set aside by a judge, who imposes a penalty of death, constitutes double jeopardy.
Moreover, if the judge is allowed to override a jury's collective deliberations and verdict and substitute his own whenever it is different, why even have a jury hear a penalty phase of a death penalty case.
