Justice Sotomayor Was Frequent Dissenter In Criminal Justice Cases

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Supreme Court Justice Sonia Sotomayor dissented in eight cases in the term that ended last Monday. The New York Times calls them “a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.”

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Thomas is committed to understanding the Constitution as did the men who  adopted it centuries ago. Sotomayor’s concerns were informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787. In January, dissenting from Justice Antonin Scalia’s last majority opinion, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.”

After Scalia died, Sotomayor laid the groundwork for her most important dissent of the term. The question was whether prosecutors could use evidence obtained by the police after illegal stops. A lawyer for the state told the justices that the Constitution allowed this if there had been an outstanding arrest warrant for the person the officer happened to stop.

At the oral argument, she asked, “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and, if a warrant comes up, searching them?” In her eventual dissent, she said.  “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”

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