In Dissents, Sonia Sotomayor Takes On the Criminal Justice System

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Adam Liptak (The New York Times) underlines the directness of (Puerto Rican) Justice Sonia Sotomayor’s pertinent dissents (eight), calling her an “increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.” And check out Sotomayor’s reading list on the African-American experience: W. E. B. Du Bois’s The Souls of Black Folk, James Baldwin’s The Fire Next Time, Michelle Alexander’s The New Jim Crow, and Ta-Nehisi Coates’s Between the World and Me. Here are excerpts of Liptak’s article:

The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”

Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.

Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.

She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes.

“The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.”

Nine days after Justice Scalia died in February, on the day the eight remaining members of the Supreme Court first returned to the bench, Justice Sotomayor laid the groundwork for her most important dissent of the term.

The question in the case, Utah v. Strieff, No. 14-1373, was whether prosecutors could use evidence obtained by the police after illegal stops. A lawyer for the state told the justices that the Constitution allowed this if there had been an outstanding arrest warrant for the person the officer happened to stop.

There is logic to the position. The warrant existed before the illegal stop. It called for the suspect’s arrest. Searching people in the process of arresting them is prudent and constitutional. The contraband the Utah officer found was real. There may be better ways to discourage unlawful stops than by suppressing evidence. But, as Oliver Wendell Holmes Jr. wrote, “the life of the law has not been logic; it has been experience.”

At the argument in February, Justice Sotomayor asked the first six questions, ripping into the state’s lawyer with real-world experience rooted in the Black Lives Matter movement.

“What stops us,” she asked, “from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and, if a warrant comes up, searching them?”

A moment later, she answered her own question.

“If you have a town like Ferguson, where 80 percent of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, ‘Give me your ID, let me see your name.’”

Last month, Justice Thomas, writing for a five-justice majority, accepted the state’s logic.

Justice Sotomayor, a former prosecutor who grew up in a housing project in the Bronx, responded with an unusually direct dissent.

“Do not be soothed by the opinion’s technical language,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”

“If the officer discovers a warrant for a fine you forgot to pay,” she continued, “courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

In many communities, she said, the tactics the court endorsed will allow the police to search people almost at will. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote.

She cited precedents, naturally. But she also named major works on the African-American experience: W. E. B. Du Bois’s “The Souls of Black Folk,” James Baldwin’s “The Fire Next Time,” Michelle Alexander’s “The New Jim Crow” and Ta-Nehisi Coates’s “Between the World and Me.” [. . .]

For full article, see http://www.nytimes.com/2016/07/05/us/politics/in-dissents-sonia-sotomayor-takes-on-the-criminal-justice-system.html

 

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