The Supreme Court’s ‘Wise Latina’ Notches Her First Key Victory
by IAN MILLHISER –
Twenty-five years ago on Wednesday, the greatest lawyer of the twentieth century confronted his own mortality.
“I’m old,” Justice Thurgood Marshall told a room full of reporters. “I’m getting old and falling apart.” The man who time and time again had forced Jim Crow to retreat using only the power of his own arguments was leaving the Supreme Court.
Justice Marshall’s retirement left a void on the nation’s highest Court for nearly two decades. Marshall was, as Justice Sandra Day O’Connor wrote the year after his retirement, “a man who knew the anguish of the silenced and gave them a voice.” This was a man who’d personally faced lynch mobs while struggling to save innocent black men from a death sentence, a lawyer of unmatched skill and poise who was chased out of Southern towns with warnings that “n*ggers ain’t welcome in these parts after dark.”
Thurgood Marshall, Justice O’Connor wrote, continuously forced his colleagues on the Supreme Court to “respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
At a superficial level, Justice Sonia Sotomayor is an unusual candidate to take up Marshall’s mantle. Princeton and Yale-educated, Sotomayor began her career as a prosecutor before representing clients such as Fendi and Ferrari.
And yet, Sotomayor’s early work as an assistant district attorney gave her a unique insight into just how easy it is for police and prosecutors to abuse their power. As NYU Law Professor Rachel Barkow writes, Sotomayor’s “experience as an assistant district attorney and trial judge” appears “to have made her attuned to the need for checks on government power.” The justice’s “view in criminal cases is firmly grounded in how things actually work in practice” and “how real people interact with criminal justice policies in the vast majority of cases in the system.”
More than just a voice of criminal defendants who are often pushed around by a system designed to empower law enforcement, however, Sotomayor has also embraced Marshall’s role as the Court’s teller of difficult truths about race. During her confirmation hearing, conservatives tore into Sotomayor for saying in a 2001 speech that she would “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” But her tenure on the bench has shown that there is wisdom in these remarks. Sotomayor is one of only three people of color who have sat on the Supreme Court, and she brings a perspective that was long absent in the justices’ conference room.
“It is no secret that people of color are disproportionate victims” of humiliating police scrutiny, Sotomayor wrote in a dissenting opinion last week in Utah v. Strieff. “Race matters,” Sotomayor wrote two years earlier, in response to conservative colleagues who insist that the only way to eradicate racism is to ignore the fact that race exists.
Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
These words, like her warning about racial injustice in Strieff, were written in a dissenting opinion. Yet they also presaged one of Sotomayor’s greatest — and most unexpected — triumphs.
No one thought Fisher v. University of Texas at Austin would turn out the way it did.
Fisher was a case, spearheaded by the same activist behind the Court’s decision gutting much of the Voting Rights Act, targeting affirmative action in university admissions. When Fisher first reached the Supreme Court in 2012, few people expected race-conscious admissions programs to survive contact with the justices. Oral arguments in the case, where potential swing-voter Justice Anthony Kennedy complained that the University of Texas had created an admissions program where “what counts is race above all,” only heightened this sense that affirmative action was on its death bed.
Then Sonia Sotomayor stepped up to the plate.
According to Supreme Court reporter Joan Biskupic, the justices initially split 5-3 after the 2012 oral arguments in Fisher (Justice Elena Kagan was recused), with the majority intending to strike down UT’s affirmative action plan. In response, Sotomayor “drafted a dissent suffused with the personal experience of her Puerto Rican Bronx background.” The justice’s message to her conservative colleagues, according to Biskupic, could be summarized as “you haven’t lived it and you don’t get it.”
With tensions growing within the Court, Justice Stephen Breyer, a center-left Clinton appointee, saw an opportunity to broker a compromise, and he eventually convinced Kennedy to pen a more moderate opinion allowing affirmative action to survive another day. Seven of the eight justices hearing this case eventually signed on to this opinion.
Yet, while Kennedy’s first Fisher opinion permitted the University of Texas to continue using race as a small factor in its admissions process, it was widely viewed as nothing more than a stay of execution for affirmative action. The opinion returned the case to one of the most conservative federal appeals courts in the country, and it did so with instructions that no affirmative action may survive judicial review unless there are “no workable race-neutral alternatives would produce the educational benefits of diversity.” Sotomayor and Breyer’s efforts may have bought affirmative action a few more years, but the writing on the wall still seemed to show that race-conscious admissions was on its death bed.
Flash forward to last Thursday, when Kennedy handed down his second opinion in the Fisher litigation. “Something strange has happened since our prior decision in this case,” Justice Samuel Alito complained in response to Kennedy’s opinion. He had a point. For the first time in nearly 30 years on the Supreme Court, Kennedy voted to uphold a race-conscious admissions program. Affirmative action was saved.
Justice Sotomayor, for her part, played only a small supporting role in Fisher‘s final chapter. She quietly joined Kennedy’s majority opinion without writing an additional word. But she did not need to. The groundwork she’d laid the last time Fisher was before the Court delivered a result that once seemed impossible.
Yet, despite her quiet success in Fisher, Sotomayor spends far more time in dissent than she does building unexpected majorities. At a time when much of the nation is awakening to the extra burden people of color carry within our criminal justice system, Sotomayor is a lonely voice — often a voice speaking only for herself and no other justice — about the need for greater checks on prosecutors, prison officials and law enforcement.
Just weeks into her second term on the Court, Sotomayor took up the case of Anthony Pitre, a Louisiana inmate engaged in a self-destructive protest — after Pitre was transferred against his will to a particular prison facility, he protested the decision by refusing to take his HIV medication. Prison officials allegedly retaliated against this decision by “subjecting him to hard labor in 100-degree heat,” duties he could not safely perform in his weakened medical state.
Both a trial court and an appeals court rejected Pitre’s plea for lighter duty. A magistrate judge even labeled his claims “frivolous” and wrote that Pitre was “hoist by his own petard” for exacerbating his own medical condition to the point where he was unable to perform hard labor. The Supreme Court voted not to hear Pitre’s case, with Sotomayor as the lone voice registering dissent.
Citing “the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” and precedents establishing that prisons may not inflict “punitive treatment [that] amounts to gratuitous infliction of ‘wanton and unnecessary’ pain,” Sotomayor offered scorn for the magistrate judge’s approach to this case. “I cannot comprehend how a court could deem” Pitre’s allegations “frivolous,” she wrote.
“To be sure, Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” Sotomayor admitted. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him.”
Sotomayor similarly took up the charge of Israel Leija, a man who allegedly was unlawfully shot and killed by a police officer after leading police on a high-speed chase and threatening to shoot at them if they maintained pursuit. In an unsigned order, a majority of the Court held that the officer who killed Leija was immune from suit because he did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Only Sotomayor dissented. The officer, she wrote, “fired six rounds in the dark at a car traveling 85 miles per hour. He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.” This, she added, is simply not allowed. “It is clearly established that the government must have some interest in using deadly force over other kinds of force” before it can take lethal action against a suspect. Even dangerous criminals have this right.
Neither Pitre nor Leija was a sympathetic litigant. One was a convicted criminal who willfully endangered his own health and then demanded an accommodation for doing so. The other behaved recklessly and directly threatened police. But Sotomayor’s insight in both cases was that no one loses their constitutional rights because they are unsympathetic — or even because they may have behaved badly.
This, after all, is the core insight behind a Constitution that protects the rights of the criminally accused — individuals that, by their very nature, are likely to be unsympathetic.
Justice Sotomayor has made reinvigorating the Fourth Amendment, with its bar on “unreasonable searches and seizures” into a pet project — and it’s a project that stretches far beyond the unsympathetic litigants that sometimes inspire her lonely dissents. “We can’t keep bending the Fourth Amendment to the resources of law enforcement,” a frustrated Sotomayor cautioned in a 2015 oral argument. Her Strieff dissent, with its warning about the racial impact of overzealous police officers, catalogs the impact of four decades of Supreme Court decisions backing prosecutors and police. It is worth quoting at length:
This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction even one that is minor, unrelated, or ambiguous.
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.
The most devastating line in Sotomayor’s Strieff dissent is a citation to three books by three authors of three different eras. “For generations, black and brown parents have given their children ‘the talk,'” Sotomayor writes. “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.” She then supports this statement with this citation:
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).
One hundred and twelve years pass, and the same problem remains. Sotomayor has declared war on nothing less than the original sin of American society, a problem that persists for generation after generation. And she fights this battle within a Court that only recently decided that there isn’t enough racism in America to justify a fully operational Voting Rights Act.
And yet she persists, writing dissent after dissent — alone, if she has to — until the dungeon shakes and the chains come off.
Sotomayor’s optimism that she can write into being a new world where parents no longer need to give their children “the talk” mirrors the profound pessimism of the other person of color on the Supreme Court, Justice Clarence Thomas.
In the most uninformed liberal imaginations, Thomas is often painted as a lapdog of the late Justice Antonin Scalia. Or, worse, as an Uncle Tom who has prospered by selling out to a political movement that cares little for black people. These characterizations are unfair and offensive.
The reality is that Thomas’ worldview is profoundly shaped by his blackness. As Jeet Heer writes, Thomas “preaches a doctrine of stoic individual endurance in the face of an irrevocably racist society.” While Sotomayor takes up Thurgood Marshall’s charge to tear down the edifices of racism through the law, Thomas sees these edifices as permanent and immovable.
In stark contrast to Chief Justice John Roberts — the acolyte of color-blindness who once summarized his entire simplistic theory of racial justices in a single sentence: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race — Thomas said in 1985 that “code words like ‘color-blind’ aren’t all that useful.” Thomas saw first hand how much race matters in the United States. “I grew up in Savannah, Ga., under segregation. It wasn’t color-blind and America is not color-blind today.”
He later told Juan Williams that “there is nothing you can do to get past black skin. I don’t care how educated you are, how good you are — you’ll never have the same contacts or opportunities, you’ll never be seen as equal to whites.”
Indeed, Thomas’ conservatism is a reflection of just how deeply pessimistic he is about the intractability of racism. As a recent graduate of Yale Law School in 1974, Thomas found himselflocked out of the elite job opportunities available to his white classmates. He blames affirmative action.
When he did an interview for law firm jobs, many interviewers “asked pointed questions unsubtly suggesting that they doubted I was as smart as my grades indicated,” Thomas wrote in his 2007 memoir. Affirmative action’s mere existence, Thomas believes, led employers to think that his qualifications were a sham. “Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” Thomas wrote in an opinion dissenting from Kennedy’s surprising turnaround in Fisher. Government efforts to ameliorate racism, Thomas believes, only make it worse.
Yet, while Thomas’ profound racial pessimism is distinct from Roberts’ racial blindness, it yields much the same results. According to Thomas’ Fisher dissent, “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Just like Roberts, Thomas would have the University of Texas close its eyes to issues of race.
The New Chief
Thomas has spent most of his time on the Supreme Court as part of a conservative majority. Sotomayor, by contrast, was part of a left-leaning minority until the death of Justice Antonin Scalia last February. Whether Thomas regains his position in the majority, or whether Sotomayor potentially gains some new allies in her quest to revive the Fourth Amendment, could very well be determined by this election.
Indeed, as the first Obama nominee to the Supreme Court, Sotomayor holds the most precious commodity a justice can own — seniority. When the next president takes office, both Justices Ruth Bader Ginsburg and Stephen Breyer will be quite elderly. Sotomayor, by contrast, will be a relatively sprightly 62-year-old. If the next president replaces Scalia, Ginsburg and Breyer with justices similar to Sotomayor, the Court’s first Latina will become the de facto chief justice in politically divided cases. As the senior liberal, she will have the power to assign the most significant opinions to herself.
The question whether Sotomayor will achieve her vision for the Fourth Amendment, however, remains much more uncertain — even if a left-leaning president does name her new colleagues. The new awakening around race and criminal justice, spurred by movements like Black Lives Matter and incidents like the protests in Ferguson, Missouri, is a very recent development. It has not yet penetrated all the way into the roots of either party, and it certainly hasn’t fully infused the judiciary. Justice Breyer joined Thomas’ majority opinion in Strieff. Chief Judge Merrick Garland, President Obama’s nominee to fill Scalia’s seat, is a former high-level prosecutor who is not expected to share Sotomayor’s skepticism of too-powerful law enforcement.
Nearly half a century ago, Thurgood Marshall became Lyndon Johnson’s final appointment to the Supreme Court. He was also the last person appointed by a Democratic president until Justice Ginsburg’s elevation in 1993. Marshall spent his entire career as a justice watching the Court grow more and more conservative. And it’s not a secret that he grew increasingly frustrated in dissent.
So, while Sotomayor has now taken up Marshall’s mantle as the Court’s racial truth-teller, her eventual fate as his heir is very much outside of her hands. Whether she’ll be able to conjure the better world Marshall sought will depend on the next president.