It’s not all that unusual for Supreme Court dissents to get more attention than the majority opinions to which they are attached. Indeed, the late justice Antonin Scalia turned pungent dissents into something of an art form.
But a dissent by Justice Sonia Sotomayor released today is notable not just for its sharp rhetoric and its citation of unorthodox authorities like James Baldwin and Ta-Nehisi Coates. It also introduced a bit of street sense to a case where legal abstractions disguise a brutal reality for millions of Americans — most of them black or brown and poor — whose accumulation of venial sins like unpaid parking tickets gives them an “arrest record” that exposes them not only to discrimination by employers, creditors, and landlords, but to illegal behavior by police as well.
The Court’s opinion (written by Justice Clarence Thomas) in this 5–3 decision treats the existence of an outstanding arrest warrant as a retroactive justification for an otherwise illegal stop and search, making the evidence so obtained admissible in a criminal trial. The ruling seems rational under precedents that create exceptions to the "exclusionary rule," which normally prevents the use of illegally obtained evidence; a warrant justifies an arrest, and an arrest justified a search, even if the initial "stop" that leads to the discovery of the warrant was in itself illegal.
Sotomayor argues (and in this she was joined by justices Ginsburg and Kagan), however, that police routinely and deliberately count on “discovering” arrest warrants after conducting constitutionally dubious searches without probable cause. Thus, the illegal police behavior is by no means incidental, and treating outstanding arrest warrants as carte blanche for Fourth Amendment violations essentially makes a large and inherently vulnerable part of the population subject to constant violations of their rights.
But then Sotomayor goes beyond what her fellow dissenters felt comfortable in saying by making the obvious racial connection:
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, 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 manner. But is is no secret that people of color are disproportionate victims of this type of scrutiny. 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.
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.
One hostile commentator said of Sotomayor’s dissent that it “reads like a Black Lives Matter manifesto.” I’d say it reads like the work of somebody who hasn’t entirely lost touch with the daily realities of the streets.