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Is Justice Sotomayor the Best Dissenter on the Supreme Court?

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By Casey C. Sullivan, Esq. on June 21, 2016 2:15 PM

We might have found Justice Scalia's replacement. No, we're not talking about Merrick Garland, any of the potential justices proposed by Donald Trump, or even Justice Clarence Thomas, who broke his ten-year silence by piping up at oral arguments to defend Justice Scalia's approach to the Second Amendment. Nope, Justice Scalia's shoes may have been filled by a woman who shared the bench with him for the past seven years: Justice Sonia Sotomayor.

Justice Scalia, you'll remember, was always at his best in his dissents, which were impassioned, wry, and often well-argued, even when patently offensive. But with her dissent in yesterday's ruling in Utah v. Strieff, Justice Sotomayor may have claimed the mantel of the Supreme Court's greatest dissenter.

Justice Sotomayor's "Atomic" Dissent

The Supreme Court ruled yesterday that evidence found during an illegal stop may be used in court, where officers discovered an outstanding arrest warrant after the illegal stop but before searching for evidence. The ruling "goes a long way towards creating an exception to the exclusionary rule for searches of persons who have outstanding warrants," Orin Kerr writes, allowing evidence to be used which would otherwise be kept out of court under the "fruit of the poisonous tree" doctrine.

The court's opinion, a 5-3 split with the majority penned by Justice Thomas, takes pains to limit the ruling, emphasizing cost benefit analysis and attempting to create a clear framework for future courts.

Justice Sotomayor was not having it. In a powerful dissent, described as "atomic" in Slate, Justice Sotomayor took direct aim at the majority's reasoning, not just at its legal arguments, but its alleged naivety about the reach of the ruling. Just one sentence into her dissent, she writes:

Do not be soothed by the opinion's technical language: 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.

She attacks the Court's "insistence that the event here was 'isolated,'" noting that "nothing about this case is isolated."

Outstanding warrants like the one at issue here "are surprisingly common," Justice Sotomayor writes, joined by Justice Ginsburg. To prove her point, she turns to Ferguson, Missouri, site of the fatal police shooting of Michael Brown, which led to months of protest and helped give rise to the Black Lives Matter movement.

In Ferguson, Justice Sotomayor notes, nearly three-quarters of the population has an outstanding warrant against them. And in the St. Louis metropolitan area, officers regularly stop people "for no reason" other than to check for a warrant.

A Signature, Personal Touch

Justice Sotomayor's dissent is not surprising. She dominated oral arguments when the case was argued in February. "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?" she asked.

But yesterday's dissent shows just how strongly she related to the Fourth Amendment issues at play. And it relies heavily on what's become her signature voice: the ability to connect complex constitutional issues to the real life experiences of everyday people -- people, like her, who grew up facing adversity, who often feel mistreated by the criminal justice system. It's a mix of empathy and experience that is rarely seen from the Supreme Court bench.

"Writing only for myself, and drawing on my professional experiences, I would add that unlawful 'stops' have severe consequences much greater than the inconvenience suggest by the name," she argues. Justice Sotomayor then goes on to catalogue those indignities, everything from "an officer telling you that you look like a criminal" to the humiliation of a pat down, to jailing you for jaywalking and forcing you to "shower with a delousing agent."

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 the justice knows who is most likely to experience these indignities. "It is no secret that people of color are disproportionate victims of this type of scrutiny," she writes.

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.

Not Her First Great Dissent

It should be apparent by now that Justice Sotomayor's dissent stands in strong contrast to the dissents of Justice Scalia. His were full of sly barbs, amusing language, and a somewhat inflexible view of legal interpretation -- so much bluster, argle bargle, and legalized heroin. Their power comes from deftly belittling the opposition.

Justice Sotomayor's great dissents, on the other hand, shine by connecting the law to lived experience and by bringing in perspectives often excluded from the Court.

And it works. Perhaps her most powerful dissent was written in response to 2013's ruling to race-conscious university admission's policies. That case, Fisher v. University of Texas at Austin, took eight months to decide and resulted in a non-decision that avoided the major issues.

But even that was a win. When faced with an opinion that would have struck down the University of Texas' use of race in admissions, Justice Sotomayor penned a scathing dissent, the gist of which is: "you haven't lived it and you don't get it," according to Reuters' Joan Biskupic. It was successful enough that it never needed to be published; Justice Sotomayor's writing had changed the outcome, allowing diversity-focused university admissions to continue.

The Fisher case is now back before the Court. A decision will likely be issued this Thursday or the following Monday.

Will Justice Sotomayor find herself dissenting once again?

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