The media have widely praised Sonia Sotomayor’s dissent in Utah v. Strieff. Even though she is derided as one of the worst writers on the bench, even by her ideological comrades, headlines describe the dissent as “stinging” (New York Daily News), “ringing” (Atlantic), “fierce” (Washington Post), “fiery” (CNN), “epic” (Nation), “blistering” (NPR), “biting” (Christian Science Monitor), and “scathing” (NBC).
In particular, they praise the dissent for bravely taking on racial injustice in America. Slate called it an “atomic bomb of a dissent slamming racial profiling and mass imprisonment.” Mother Jones lauded the “court’s only Latina justice” for putting “her life experience to practice” and “excoriating her colleagues for misunderstanding the police harassment to which people of color are regularly subjected.” The Atlantic wrote that “few institutions in American life have grappled with race and racism like the U.S. Supreme Court, for better or worse, but rarely does it speak about it with this level of detail.” It went on to suggest that the dissent may be a “veiled nod to the Black Lives Matter movement.”
The nod is barely veiled. Justice Sotomayor repeatedly cited the Justice Department’s Ferguson report, which had nothing to do with the case, and made a strained, but obvious, allusion to the Eric Garner case by calling the “countless people who are routinely targeted by police. . . . canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.” [emphasis added]
There’s just one problem. Utah v. Strieff has nothing to do with police brutality, racial profiling, mass incarceration, or any of the pet causes of Black Lives Matter or the even broader “criminal justice reform” movement.
The case is rather mundane. Salt Lake City narcotics officer Douglas Fackrell saw Edward Strieff leave a suspected meth den. He briefly detained Mr. Strieff and learned that there was an outstanding warrant for his arrest. He searched him and found meth and drug paraphernalia on him. The prosecutors conceded that merely leaving a suspected drug dealer’s house was not sufficient cause to detain Mr. Strieff, and evidence of a crime found after a stop without sufficient cause is usually inadmissible at trial. In this case, the Supreme Court ruled the evidence admissible because the officer did not commit flagrant misconduct and there was already a warrant out for Mr. Strieff. The Court’s GOP-appointed justices, along with typically liberal Justice Breyer, concurred with Justice Thomas’s majority opinion.
Reasonable minds can disagree about whether the Court struck the right balance in this case, but it is one of dozens of decisions that clarify and limit the “exclusionary rule,” which makes some evidence obtained in violation of the 4th Amendment’s “search and seizure” provision inadmissible. Both Officer Fackrell and Mr. Strieff are white, so there was no question of “racism” or racial profiling.
This did not stop Justice Sotomayor from using her dissent to complain about alleged racial disparities in police work, while citing the most fashionable polemics about racism.
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, [Ferguson Report], 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. 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.
Justice Sotomayor’s tangent is remarkable for its imprecise language (what does “double consciousness” mean?), lack of relevance to the case, false claims, radical sources, and citations that do not support her assertions.
After acknowledging that the defendant is white, Justice Sotomayor nonetheless finds it necessary to lecture us on the supposedly discriminatory nature of police searches. However, in Whren v. United States, the Supreme Court unanimously held that “intentionally discriminatory application of laws” including “selective enforcement of the law based on considerations such as race” has no role in a Fourth Amendment analysis. (The Court noted that the question of race could be raised as an equal protection violation, but Utah v. Strieff is not about equal protection.) Furthermore, the fact that blacks are reportedly afraid that police will shoot them has nothing to do with the peaceable detention and arrest of a white man.
Justice Sotomayor’s claim that that “it is no secret” that “people of color” are disproportionately “humiliated” and have their dignity “violated” by unconstitutional searches is based on a very dubious source. She cites a chapter in Michelle Alexander’s The New Jim Crow on “The Color of Justice.” Most of the chapter attacks the media and the general public’s supposed stereotyping and biases, and the allegedly discriminatory sentencing in the War on Drugs, but it says virtually nothing about actual racial profiling or police conduct. Professor Alexander briefly argues that there is racial profiling in the drug war, and cites studies that claim blacks and whites use drugs at similar rates but blacks are much more likely to be arrested for drugs.
Claims about drug-use rates are based on self-reporting. As Ed Rubenstein notes in “Color of Crime,” studies show that blacks lie on self-reporting surveys at much greater rates than whites, and racial disparities in hospital drug admissions match disparities in drug arrests. Richard Banks of Stanford notes further that drug-use surveys exclude prisoners and bums, who are more likely than other people to use drugs. If blacks in these populations are more likely than whites not to be included in surveys it would undercount drug use by blacks.
Even if the police were targeting blacks, as left-wing black Yale Law professor James Foreman Jr. notes, there is more public drug dealing and violence in black areas, which attracts the attention of the police. Furthermore, open-air crack markets create far more social problems than Professor Alexander’s proverbial “white frat boy who regularly smokes pot in his dorm room,” who she believes escapes arrest only because of his “race and relative privilege.”
Justice Sotomayor may be right to say that blacks and Hispanics give their children “the talk” out of fear of shootings, but there is no evidence that the police are more likely to shoot them than whites. Adjusted for violent crime rates, police are 1.7 times more likely to shoot whites than blacks. Anecdotally, police have been hesitant to shoot black criminals for fear of becoming the next Darren Wilson. A police detective who was beaten with his own gun by a black felon told reporters from his hospital bed that “a lot of officers are being too cautious because of what’s going on in the media” and that he “hesitated because I didn’t want to be in the media like I am right now.”
Justice Sotomayor cites James Baldwin’s The Fire Next Time, W.E.B. Du Bois’ The Souls of Black Folks, and Ta Nehisi Coates’ Between the World and Me to support her claims about “the talk.” However unlike most Court-decision references to books, Justice Sotomayor’s citations do not include page numbers. I searched all three for “the talk” and none mentioned it. Baldwin claims that a police officer once told him, “why don’t you niggers stay uptown where you belong” and adds that “police would whip you and take you in as long as they could get away with it,” but never writes about police shootings or white officers pulling guns on blacks. The Souls of Black Folk includes one aside about a black boy “whom it was said a policeman had shot and killed.” However, the context was not of parents agonizing over what could happen to their children, but to introduce a “big red-eyed black” who told Du Bois, “Let a white man touch me, and he dies.”
Mr. Coates’ book does not use the phrase “the talk” either, but it is written as a message to his son (though in reality, to guilty whites) about the perils of growing up in a country in which police officers, like everyone else, are “racists.”
Sloppy sourcing would not typically pass muster at a secondary law journal at a third-tier law school. I am tempted to blame Sotomayor’s clerks (three out of four are non-white, none is a white man), but I suspect the reason for these citations was not to footnote her assertions, but to give a “shout out” to the Black Lives Matters canon, while trying to elevate Mr. Coates’ unreadable memoir to the level of black racial grievance classics like The Souls of Black Folks and The Fire Next Time.
The press loved these citations. Vox ran a headline: “You need to read Sonia Sotomayor’s devastating, Ta-Nehisi Coates-citing Supreme Court dissent.” The Atlantic said the citations “double as a canon for modern critiques of mass incarceration.” Time lauded her for citing “seminal works on systemic racism by W. E. B. Du Bois, James Baldwin and Coates.”
Supreme Court opinions are not meant to be reading guides for a class in critical race studies. Indeed, while typical white liberal judges may stretch the law to reach their preferred racial result, they at least maintain the pretense of trying to apply the law to the facts in the case. The wise Latina’s irrelevant, unsourced, and factually deficient tirade is a new low for the politically active judiciary. A Supreme Court justice who could be on the bench for another 20 years has shown that she has fully absorbed the current anti-white worldview and is determined to work it into cases that do not even have anything to do with race.
Much like her “countless people who are routinely targeted by police,” Justice Sotomayor’s dissent is a canary in the coalmine that foreshadows the non-white-dominated left-wing justice system that is inevitable if our country continues to become increasingly non-white.