"Unlawful 'Stops' Have Severe Consequences"—Justice Sotomayor's Damning Dissent to a Supreme Court Ruling That Encourages Racial Profiling

Jun 20 2016

“Unlawful ‘Stops’ Have Severe Consequences”—Justice Sotomayor’s Damning Dissent to a Supreme Court Ruling That Encourages Racial Profiling

June 20th, 2016

The US Supreme Court handed down a real head-scratcher earlier today by ruling, in Utah vs. Strieff, that evidence obtained through an illegal search can be used against suspects.

In the case in question, Edward Strieff, a while man in Utah, was illegally stopped and searched by Detective Douglas Fackrell. Without any probable cause or a warrant, Detective Fackrell pulled over Strieff on “suspicion of drug trafficking.” It was subsequently discovered that Strieff had a small amount of narcotics in his possession and a warrant out for his arrest.

Strieff’s legal representatives are arguing that evidence obtained through an illegal search should not be considered valid. This seems plain enough, but the Supreme Court ruled five-to-three in favor of nullifying over 200 years of constitutional protection against illegal search and seizure.

One of the three voices of dissent in the decision was Justice Sonia Sotomayor. Her opinion on the case referenced racial profiling, which results disproportionate numbers of people of color being pulled over and searched. Sotomayor’s dissenting opinion also referenced James Baldwin, Ta-Nehisi Coates and Michelle Alexander’s book, The New Jim Crow.

Here is an edited version of her statement:

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,

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.

  • Sotomayor’s dissent was damning indeed. I wish Scalia was there, he would have made mince meat of the majority. No way he would have allowed this. I wonder if she channeled his spirit.