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Sotomayor Brings #BlackLivesMatter to the Supreme Court Bench

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By Casey C. Sullivan, Esq. on July 07, 2016 2:10 PM

As the kids say, Justice Sotomayor is woke. In the era of #BlackLivesMatter, a time when Travon Martin, Michael Brown, and Eric Garner (and so many more) are household names, Justice Sotomayor is taking on the criminal justice system from the Supreme Court bench.

Over the past term, she has increasingly called out, often in solitary dissents, abuses in the criminal justice system. Hers is a voice concerned with not just the logic of the law, but the way it plays out in real life. And it is a voice not afraid to call things by their name, offering scathing critiques of how racism and abuses of power are reflected in excessive criminalization and the erosion of civil rights.

In Dissents, a Strong Critique of the Criminal Justice System

Justice Sotomayor ended the Supreme Court's October 2015 Term with the second most dissents of any justice, as Adam Liptak recently pointed out in the New York Times. She was beaten only be Justice Clarence Thomas, whose idiosyncratic jurisprudence all but guarantees him the role of top dissenter every term. But, unlike Justice Thomas, Liptak notes, Justice Sotomayor's dissents "came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787."

Those dissents were wide-ranging and specific to each case, but they evinced a few consistent themes: resistance to the over-prosecution of defendants, a desire to hold police accountable for abuses, and a strong emphasis on how the Court's decisions will play out in both courtrooms and on the street.

There was, for example, Justice Sotomayor's lonely dissent in Kansas v. Carr, in which the Court reimposed death sentences that had been overturned by the Kansas Supreme Court because of confused jury instructions. The Court, Justice Sotomayor argued, had been swayed by the shocking nature of the crimes, more so than the need for good law.

When the Court sided with an officer who killed a fleeing suspect despite being told to hold his fire, Justice Sotomayor was again the sole dissenting voice. The Court had endorsed the officer's "rogue conduct" and a "'shoot first, think later' approach to policing."

Keeping It Real, Passim

And then there was Justice Sotomayor's dissent in Utah v. Strieff, which was undoubtedly the most important dissent of the term. There, the majority held that evidence gathered following an illegal stop can be used where the illegally-stopped individual had an outstanding arrest warrant. Justice Sotomayor did not hold back:

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.

"It is no secret that people of color are disproportionate victims of this type of scrutiny," she wrote.

In a striking allusion to the death of Eric Garner, Justice Sotomayor wrote that "the countless people who are routinely targeted by the police" are the "canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere."

It was a dissent that solidified her place as one of the strongest outsider voices on the Court in recent memory.

Among Supreme Court precedents and criminal justice studies, Justice Sotomayor cited James Baldwin's "The Fire Next Time," the gay, black author's reflection on race and American history. Ta-Nehisi Coates's "Between the World and Me" followed, a contemporary and much-lauded look at racial struggle from slavery to mass incarceration, as well as Michelle Alexander's "The New Jim Crow."

Among the id.'s and ibid.'s, Justice Sotomayor was presenting a veritable syllabus on racial consciousness.

Time will tell if it will it be enough to sway her fellow justices. In the meantime, the injustices that weigh so heavily on Justice Sotomayor's criminal law jurisprudence continue to play out, from Ferguson to Baton Rouge and beyond.

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