Some thoughts on Sonia Sotomayor’s prophetic dissent


      1. The Supreme Court does not defend the liberty of the most oppressed people, and never has. It is made up of the rich and privileged, and only in the face of movements from below – and rarely – as in Brown v. Board of Education is any good. But this week, Sonia Sotomayor spoke directly to and for very oppressed people, black, chicano and white, who are swept up by the police in what she rightly named “the carceral state.”  In saying what it is to judge from a moral viewpoint, the great democratic theorist John Rawls spoke of putting oneself in the situation of the least advantaged.  That is what Sotomayor did.  She spoke the truth.

    2.  The case Utah v. Strieff expanded police powers. Joseph William Strieff, a white  man, left an apartment house in Salt Lake City.  A police man with no probable cause, no reasonable suspicion, arbitrarily stopped him.  For each of us has a basic equal right under the Fourth Amendment to proceed in ordinary activities without police harassment.  The detention was illegal and made what followed illegal.
2             The policeman then called in and discovered a warrant for failure to pay a parking ticket – a common way of trapping poor people, as in Ferguson, in the prison system.  
33.  The Department of Justice, Sotomayor wrote, recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000people had outstanding warrants against them.” That means 76 percent of Ferguson residents have, under the court’s decision, effectively surrendered their Fourth Amendment right against unreasonable seizure. “In the St. Louis metropolitan area,” she continues, “officers ‘routinely’ stop people—on the street, at bus stops, or even in court—for no reason other than ‘an officer’s desire to check whether the subject had a municipal arrest warrant pending.’ ”
3.            There are perhaps 8 million such warrants out.  Normally, a policeman pursues an individual given a warrant, or calls in about it when the person has been stopped because of violating a law. Instead, on no reasonable suspicion, the Salt Lake policeman detained Strieff, searched the car, found some amphetamines, and arrested him. 
44. In contrast, the decision written by Justice Thomas and voted for by 4 other justices including Steven Breyer, extended police powers to detain arbitrarily and without suspicion, check for warrants (not get a warrant for a specific person and find that person) and then search that person.
55. Sotomayor spoke directly to we the people:
       “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: 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, 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.Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
66. What Sotomayor refers to as the carceral state comes from Michelle Alexander, The New Jim Crow.  The US government, federal, state, and local, imprisons 2.3 million people, 25% of the world’s prisoners.  That state wantonly sweeps up particular nonwhite people for vicitimless “crimes” (marijuana, not paying parking tickets), and lots end up in prison.  A series of violations – disturbing the police – can land one in prison for a long time.  And this Utah v. Strieff extends police powers at the expense of basic individual rights – not to be detained  or searched without cause, not to be hunted simply as a member of a general population.  It attacks the equal basic rights of a citizen and of the people of the United States…. 

7. Listen again to Sotomayor’s words:
        “The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This 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.’”
       “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.” 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.” 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. 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.”
    “… By legitimizing the conduct that produces this double consciousness [WEB Dubois, Souls of Black Folk, speaks of the special consciousness of African-Americans and other oppressed groups both as enforcedly “lesser” and as human], 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.
7     8.     Note, the Utah practice, affects white folks as well as blacks and latinos.  The case involves a central issue of the rule of law and of democracy for all of us.  Put differently, we all have a democratic or common interest in fighting against racism.  In contrast, Utah v. Strieff strikes at the very meaning of equal liberty.  The majority affirmed the policy of a police state.
89. Sotomayor then turns poignantly to the advice of a nonwhite parent to her daughter or son:
        “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.”
          This is what racist “legal” system has created.
910. Cenk Uyger below makes some very good points about the decision and the court.  But he and his colleague oddly call the racist justices including Thomas (racism is an ideology…) “conservatives.” On the contrary, a  conservative is someone who honors law, that is respects habeas corpus, the right of each prisoner to a day in court and not to be tortured as well as freedom from unreasonable police searches and seizures. The Utah v. Strieff decision travesties the latter. Contra Uyger, it is an anti-conservative and authoritarian decision; it is also profoundly racist.  
11.  Uyger rightly points out that the so-called liberal justices are but moderates, appointed mostly by the pro-Wall Street leadership of the Democratic Party.  Sotomayor here stands out for speaking the truth.  So does Ruth Bader Ginsburg who concurred in Sotomayor’s dissent and wrote her own powerful dissent from the  Supreme Court’s racist 2013 decision to eliminate Article 4 of the Voting Rights Act. See here.   (Every state dominated by Republicans has enacted measures to reduce the number of non-white and poor voters, probably by millions… ).
12. The Supreme Court is often a despicable , authoritarian, unthinkingly racist institution (Justice Roberts is a very knowledgeable lawyer, but an awful human being). 
113.  In contrast, the three women who dissented in this case represent the possibility of a more decent and intelligent kind of court. 
114. Steven Breyer is often one of the moderates.  Given past and current American racism, he voted this week for the University of Texas at Austin to be allowed to  consider race as one factor in admissions. That is commendable.  It says that he is happy enough to have middle class black folks and latinos around.  He also voted for the Presidential power to permit  immigrants to stay.  And that, too, is decent, particularly when Trump wages a viciously racist campaign demonzing many groups.  See here.   
      But he is an upper class guy, and hasn’t the slightest experience on the street or the ability to listen.  His vote justifies what Sotomayor said about her appointment to the Court – that her particular experience of oppression gives her moral/legal insights where others turn away.  
15. Sotomayor also cites Ta-Nehisi Coates on why black bodies are always in danger in the United States.  Hers is an authoritative opinion echoing truths that have been fought for by Black Lives Matter.   Her conclusion invokes the police murder of Eric Garner: “I can’t breathe.”
    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. 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.”
     This is pretty damn important.  The carceral system is anything but justice.  The damage done by this decision must be reversed, and soon.
Sotomayor’s dissent is here.

Uyger’s commentary is here
Dubois, The Souls of Black Folks“It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness, an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder. The history of the American Negro is the history of this strife- this longing to attain self-conscious manhood, to merge his double self into a better and truer self. In this merging he wishes neither of the older selves to be lost. He does not wish to Africanize America, for America has too much to teach the world and Africa. He wouldn’t bleach his Negro blood in a flood of white Americanism, for he knows that Negro blood has a message for the world. He simply wishes to make it possible for a man to be both a Negro and an American without being cursed and spit upon by his fellows, without having the doors of opportunity closed roughly in his face” (pp. 2-3)

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