A tale of two judges perceived to be polar opposites.  Sonya Sotomayor—the liberal Democratic nominee of the Obama administration and Neil Gorsuch—the conservative republican nominee of the Trump administration do not seem like likely allies.  When most of us envision Supreme Court justices hotly debating issues, we imagine a split largely down party lines.  After all, our country is more divided down party lines then likely any other time in history.  Stanford News published an article last year discussing findings that suggested Americans’ partisan identities are stronger than even racial, ethnic, or religious identity—primarily because party affiliation is wholly a choice and is seen to most accurately reflect who a person truly is and what that person truly believes.

One would assume, then, that Justices Sotomayor and Gorsuch differ in opinion, perspective, value, and belief on a great number of issues.  So what brought them together?

In Stuart v. Alabama, a driving under the influence matter, Vanessa Stuart argued that her constitutional rights were violated when she was prevented from cross-examining the State’s scientist about her blood alcohol results.  The State presented a different analyst from the one that had actually tested Stuart’s blood and then provided the jury with an “estimate” as to her blood alcohol level at the time she had been driving.  Stuart was therefore unable to properly cross examine a key witness in the State’s case against her—the person who performed the blood test and came up with the number that the estimate was derived from.  Although the Supreme Court denied certiorari—meaning that it chose not to hear this case—Gorsuch, joined by Sotomayor, authored a very “Scalia-like” dissent of the decision not to hear the case.  Gorsuch argued that Ms. Stuart’s 6th Amendment rights were violated when she was not afforded the opportunity to confront and challenge the lab analyst that had actually tested her blood.  The late Justice Scalia believed the 6th Amendment had two primary functions: to allow the accused to challenge the testimony of a witness and to bar any testimony from witnesses who did not or cannot testify in court. Scalia had been known to take the side of the Constitution in even some of the more shocking or serious crimes—believing “a criminal defendant must get a crack at all the evidence introduced against him; anything less is a no-go.”  (Nanos, 2018)

It appears Gorsuch and Sotomayor are not so different after all—each believes in the fundamental rights guaranteed to each citizen by the Constitution.  Sotomayor and Gorsuch believed the Court should not only have agreed to hear the case, but that Ms. Stuart should have won.  And for any of those questioning whether we see this in Arizona, the answer is yes, regularly.  We, too, have debated in court this issue of having a non-testing analyst attempting to present blood alcohol evidence to a jury.

Criminal defense lawyers get labeled a great many things, “bleeding hearts” being one of the more flattering of those things.  To us, it seems obvious that the Constitution protects defendants’ rights in such a position, and we are hopeful that others will value those rights as well.  And this unlikely partnership of Sotomayor and Gorsuch reminds us that our fundamental freedoms should not be constrained by notions of partisan ideals.

Elura Nanos, Gorsuch & Sotomayor Join Forces in a Very Scalia-like Dissent in Drunk Driving Case, Law & Crime (Nov. 2018), https://lawandcrime.com/opinion/gorsuch-sotomayor-join-forces-in-very-scalia-like-dissent-in-drunk-driving-case/

Milenko Martinovich, Americans’ Partisan Identities Are Stronger than Race and Ethnicity, Stanford Scholar Finds, Stanford News (Aug. 2017), https://news.stanford.edu/2017/08/31/political-party-identities-stronger-race-religion/