The Talk

Many commentators have lamented the fact that the sole African-American on the Court for a two generations has been a Justice with a perspective on race that is atypical of the average of African-American citizen.  Often that's understood in terms of outcomes: Clarence Thomas is way more conservative on almost every issue than most African-Americans.  But what is less obvious is that we are missing content.  Today, in Utah v. Strieff, Justice Sotomayor's dissent shows us what we've been missing:

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 it 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. 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.  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. (Some cites omitted.)

This is powerful stuff.  Steven will presumably be underwhelmed by Justice Sotomayor's citation to On the Run, however.

Comments

[David Bernstein]

I agree with the thrust of Sotomayor's dissent, but the race issue goes both ways; more African Americans and Hispanics are targeted for searches, but more African Americans and Hispanics live in crime-ridden neighborhood where aggressive policing makes them safer. So it's not clear to me that adding disparate impact into the mix gets you anywhere.

[Matthew Reid Krell]

David,

Asserting that "aggressive policing makes [minorities] safer" due to the "crime-ridden neighborhoods" they live in is a bold causal claim that I don't think is necessarily supported in the literature, not least because there's some evidence that the aggressive policing is what causes the neighborhoods to be regarded as crime-ridden (in other words, the conclusion you reach suffers from measurement bias, selection bias, and endogeneity).

And while I hate to use the rhetorical tricks of Jonah Goldberg, this argument in fact DEMONSTRATES the point Justice Sotomayor is trying to make. To the extent that minority neighborhoods actually are "crime-ridden," that is also caused by Alexander's New Jim Crow - it's artifacts of redlining and white-establishment policy choices that incentivize the concentration of crime in minority neighborhoods.

While I could wish that Justice Sotomayor was more explicit in identifying causal mechanisms, the phenomena she describes is hardly unknown in mainstream coverage. In short, disparate impact only gets you somewhere if you realize that your objections are in fact auto-correlated to her conclusions.

[David Bernstein]

So you can't point out that more aggressive policing can lower crime rates without addressing some provocative but mutually contradictory theories (it can't be that certain neighborhoods don't REALLY have higher crime rates, but those higher crime rates are cause by the white establishment) about the sociology of crime?

[Steve L.]

I have no problem with the cite to On the Run:

"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. A. Goffman, On the Run 196 (2014)."

In this instance, it is quite accurate.

[anon]

And, it took a sociologist and a Justice of the SCOTUS to establish this?

[Captain Hruska Carswell, Continuance King]

Welcome to the United States of America by Clarence Thomas. Is this the USA? Stop me somebody on a hunch? So, now the DEA can show up at my house on a hunch and go through my drawers? If I am having a picnic with my family and a squad car rolls up and can start to ask me questions and ask of ID and run my name for no reason other than she feels like it? Do we even have the exclusionary rule anymore?

[anon]

Who knew that the issue was NOT the "constitutionality" of the "suspicionless stop" because the majority agreed that stop was UNCONSTITUTIONAL? (Issue: "We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. ... In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer lacked reasonable suspicion to initially stop [the defendant]." Held: "discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.")

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. Let's just stick to commenting about Thomas, and what a racist he is! Whatever we do, let's not read the opinion of the court; it will only confuse us. The "average of African-American citizen" would not have concluded that pursuant to the attenuation doctrine a warrant broke the causal chain. We all know this.

But, who knew that Breyer is such an insensitive racist? Never mind! Don't go there!

And, who knew that professors of law don't really read cases, don't parse the actual issues, don't know and don't care what the conditions are that led to this incident and are prone to fly off the handle spewing wild, inaccurate polemics at the slightest opportunity to agree with any accusation against certain people?

Who knew that the record in an appellate court case is irrelevant to these REAL issues?

What a very, very sad comment on the state of the nation this passage, and the reactions to it, represents.

[Enrique Guerra-Pujol]

The real news here is the Kagan and Ginsburg did NOT join this part of Sotomayor's dissent.

[Matthew Reid Krell]

David,

Respectfully, those theories aren't mutually contradictory - but I'm not going to take the space here to explain why they aren't. Especially when Michelle Alexander's already done it better than I could.

Believe it or not, blog comments don't count as scholarship.

[anon]

Enrique
What should we make of a passage that NO OTHER JUSTICE joined?
Ask the original poster here.
"This is powerful stuff," he states.
See also, Huffington Post.
Matthew
You've got that right.

[Captain Hruska Carswell, Continuance King]

We have DUI and safety road side check stops. Why not just stop everybody driving across I-80 to check for warrants? Everybody and anybody is fair game now. Were getting to the day when we will all wear lanyards to show we are warrant free.. It's too bad this case didn't involve GUNS. The NRA would have been all over this!!! Deafening silence from a supposed Rights group. What happened to the our right to be left alone?