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Invoking Racial Justice at the U.S. Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Supreme Court ruled Monday that if the police stop you illegally but then find out that there’s a traffic warrant out for you, they can search you and charge you with a crime if you're carrying something illegal. The 5-to-3 decision can be read as an implicit vindication of controversial stop-and search policies.

In a blistering dissent, Justice Sonia Sotomayor invoked Ferguson, Missouri, to argue that the court's decision impugns the dignity of the individual. She said that the effects will be felt disproportionately by “black and brown parents” who for generations “have given their children ‘the talk’” out of “fear of how an officer with a gun will react to them.”

The facts of the case were simple but striking. A police officer who says he was acting on an anonymous tip staked out a house in South Salt Lake City in 2006. After watching people going in and out, the officer stopped one of them, Edward Strieff, to determine whether drugs were being sold there.

The stop was illegal because it wasn't based on probable cause or a reasonable suspicion of the particular person coming out of the house. But the officer checked Strieff’s record with headquarters and found out there was a traffic warrant out against him. He then searched the man and, after finding methamphetamine and drug paraphernalia, brought him in to be charged.

In an opinion by Justice Clarence Thomas that was joined by the court’s conservatives plus Justice Stephen Breyer, the court held that Strieff’s subsequent conviction on the basis of the evidence fell under an exception to the exclusionary rule, which ordinarily excludes evidence that is the “fruit of the poisonous tree” such as an illegal stop.

The particular exception was one known as “attenuation doctrine.” The court said that the discovery of the outstanding traffic warrant was a sufficient intervening event to break the chain between the unlawful stop and the discovery of drug-related evidence. In other words, the court held that the search shouldn't be treated as a consequence of the illegal stop, but rather of the traffic warrant. Never mind that the officer only got Strieff’s ID and checked his records because of the initial illegal stop.

The court admitted that no time elapsed to attenuate the cause. But it relied on a 1984 precedent in which police officers entered an apartment while waiting for a warrant to arrive. In that case, the court allowed the evidence from the search to be introduced because it said the illegal entry was “unconnected” to the evidence for the search warrant but hadn't yet arrived.

Most strikingly, the court said that because the officer had acted in good faith and been “at most negligent,” there was good reason to treat the case of exception to the exclusionary rule. There was no evidence, said the court, “that this unlawful stop was part of any systemic or recurrent police misconduct.”

Sotomayor’s dissent took on that contextual argument. In a section joined by Justice Ruth Bader Ginsburg, Sotomayor argued that the 1984 precedent shouldn’t apply because the federal agents in that case didn't use information they obtained illegally to perform a subsequent search. In contrast, the only way the police officer could get information on Strieff was because of the illegal stop.

Sotomayor also rejected the categorization of the officer’s action as in good faith. His “sole purpose,” she wrote, was to “fish for evidence.”

Also in a section joined by Ginsburg, Sotomayor pointed out that traffic warrants “are surprisingly common.” Quoting the Department of Justice report on Ferguson, she observed that 16,000 of the city's 21,000 people had outstanding warrants against them. She pointed out that, again according to the Justice Department, the police “routinely” stop people in places such as St. Louis and Newark, New Jersey for no other reason than to check whether warrants are outstanding.

The most extraordinary section of Sotomayor’s dissent was delivered “writing only for myself, and drawing on my professional experiences.” She said that the court had “given officers an array of instruments to probe and examine you,” and that this had a differential effect on people of color, who might come to be treated as “second-class citizens” as a result.

Strieff is white, she noted, “but it is no secret that people of color are disproportionate victims of this type of scrutiny.” For this point Sotomayor cited a 2010 book, “The New Jim Crow” by Michelle Alexander. She then referred to “the talk,” citing James Baldwin’s “The Fire Next Time” and Ta-Nehisi Coates’s “Between the World and Me.”

Most significant, Sotomayor cited W.E.B. Du Bois’s 1903 classic, “The Souls of Black Folk.” She connected the case to Du Bois’s famous description of the African-American’s “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.” Sotomayor wrote:

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.

This powerful passage, so unusual in Supreme Court writing, is the latest instance of Sotomayor’s willingness to speak on behalf of people of color and the disempowered.

Referring to people “routinely targeted by police,” she concluded: “Until their voices matter too, our justice system will continue to be anything but.” This dissent will be in the casebooks as an example of a judicial opinion attuned to theory, to reality, and to the current moment in racial justice.

  1. In a separate dissent, Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, offered a straightforward argument that the court was misapplying precedent. Why Breyer did not join her pragmatic dissent is beyond me. He will regret it, I predict, even though he is not someone generally prone to regret.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net