A Wise Latina

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Democracy's Constitution / Heroes / The Supremes

Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning.   At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might  have some valuable insights to offer in constitutional discussions. Then she ignored the  tradition for first term justices  to be  seen but not heard by  immediately joining in the colloquies  with counsel  during oral argument.

But, as Adam Liptak points out in this excellent article in  the New York Times, it was only  last term that  Sotomayor  showed how different a justice she could be.   http://www.nytimes.com/2016/07/05/us/politics/in-dissents-sonia-sotomayor-takes-on-the-criminal-justice-system.html  In so doing, she may have started to change the way we talk about constitutional law.  I sure hope so.

Liptak discusses several Sotomayor dissents from last term, but rightfully gives special attention to her dissent in Utah v. Strieff.  Let me give you some background on the case before letting you judge Sotomayor’s  performance for yourself.  Strieff involved a fact situation that has divided the Court for a long time.  A police officer stops and searches a citizen without any reasonable suspicion of illegal conduct.  This is a clear violation of the Fourth Amendment.  But in the course of the illegal search, evidence of illegal conduct is found which the State attempts to introduce at trial.  The defense insists that it be excluded because it stems from an illegal stop and search.

In Streiff, the State argued the evidence discovered, illegal drugs, should be admitted because it was not the product  of the illegal stop; it came from  the officer’s decision after stopping Strieff to check if he had any warrants outstanding and finding there was an arrest warrant outstanding for a minor traffic violation.  Only  then did he arrest Strieff and search him, finding crack in one of his pockets.  The defense replied that this argument was pure sophistry because checking  for outstanding warrants is a routine part of the stop procedure.  To allow such tainted evidence will only invite police to illegally stop and search innocent people. many guilty of no more than having dark skin.

The Court ruled in a 5-3 decision for the State.  Justice Thomas wrote the majority opinion which pretty much tracked the prosecution theory.  Justices Kagan and Sotomayor  wrote dissents which  echoed each other on the law,  but differed dramatically in presentation.   Sotomayor better understands that the defense position may have  logic on its side, but fails on an emotional level because it calls for a guilty person evading punishment.   Also what’s so terrible about the inconvenience of  being stopped  by a police officer just trying to do his or her duty?   Sotomayor wants us to understand– to viscerally feel– that, especially for a minority, a police stop constitutes much more than an inconvenience.

Here is Part IV of her dissent.  It’s a little long for the internet, but I don’t think you will find it boring:

SOTOMAYOR, J. dissenting

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This Cite as: 579 U. S. ____ (2016) 1 This Cite as: 579 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this 12 UTAH v. STRIEFF SOTOMAYOR, J., dissenting manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. * * * I dissent.

After reading this dissent, my reaction was quick and clear– “I hear you!” And it was Sotomayor’s  skillful use of language  that brought me  beyond logic to  feel the innocent minority suspect’s pain.  That’s a great thing about words; they allow  us to understand things we have not  experienced. In her wonderful memoir “My Beloved World” Sotomayor tells us that she learned as a prosecutor that you  need more than logic to win.  You need emotion.   Now she has employed that same wisdom in writing a judicial opinion.

I am sure some readers may  agree that Sotomayor’s  prose is persuasive, but still  fear that her dissent is not sufficiently “judicial.”   Aren’t judges supposed to be above the fray?  While this is a reasonable objection  I think that it ignores some basic facts about the Supreme Court and the role of dissenting opinions. The Supreme Court is not a court in the traditional sense of one judge doing justice in one case. Rather it looks to the future and decides by majority vote.   Any decision can be overruled by a later Supreme Court majority.  A dissent allows a justice to show  why the present majority is wrong.   Sotomayor’s  audience here is not just her colleagues; in a democracy it also includes  her fellow citizens.  Is there any good reason why she  should not  use all the lawyer’s  traditional  skills  in making the most persuasive argument possible?

 

5 Comments

  1. Wonderful analysis! Your explanation of the role of dissents informs and persuades superbly. You might even take Sotomayor’s argument a bit further to observe that we are experiencing an altering of the relationship of citizen and state, that it is the “consent of the governed” that is ultimately at stake. Minorities suffer most at present, but the logic of the decisions, as well as other sources (J. Baldwin!), she cites point to broader application.

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    • Thanks, Howard. I think you are right about the breadth of the sources she cites. I think she wants legal and other voices to interact to the benefit of both.

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  2. Perhaps someday, when we get beyond the partisan rancor that characterizes our current socio-political discourse, this dissent will become the majority position and Justice Sotomayor, its hallowed proponent. Thank you for calling our attention to it.

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  3. Richard Khal says

    Best cites: “See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).” Great stuff.

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