The Supreme Court is in the news again this week after a bitter disagreement over civil liberties. Yesterday, in a 5-3 decision, the majority of justices came down squarely on the side of the state, but it was Sonia Sotomayor’s rousing dissent that captured the public’s attention. She wrote vividly, addressing readers in the second person: “You are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” She cited works such as James Baldwin’s The Fire Next Time and Ta-Nehisi Coates’s Between the World and Me from the civil-rights canon. And she employed certain metaphors seen by many as a nod to contemporary activism: “We must not pretend that the countless people who are routinely targeted by the police are ‘isolated.’ . . . Until their voices matter too, our justice system will continue to be anything but.”
At first glance, the case, Utah v. Strieff, hardly evokes the dystopian state Sotomayor describes. Edward Strieff, who had recently exited a house under surveillance for drug activity, was stopped by Douglas Fackrell, a police detective in Salt Lake City. Officer Fackrell detained Strieff and asked for identification. He then discovered that Strieff had an outstanding arrest warrant for an old traffic violation, arrested Strieff, and found drugs on his person. Pretty innocuous.
Crucially, though, the initial stop was unconstitutional. According to the exclusionary rule, a legal doctrine gradually assimilated into the Constitution through years of Fourth Amendment jurisprudence, evidence obtained via unconstitutional means cannot be the basis for criminal prosecution. The rule’s utility as a deterrent for police misconduct is hard to dispute. But it is not ironclad. If certain conditions obtain — if the societal cost of suppressing the evidence outweighs the benefit of deterring constitutional violations — then the exclusionary rule no longer applies.
The Court’s opinion, written by Clarence Thomas and joined by Justices Breyer, Kennedy, Roberts, and Alito, determined that the exclusionary rule did not apply in this instance. The discovery of an outstanding arrest warrant was, Thomas wrote, sufficient to “break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.” The warrant was “entirely unconnected with the stop,” we are told, and the unconstitutional nature of the stop in this case was not “purposeful or flagrant,” but merely “negligent.”
On the legal merits and the question of distorted Fourth Amendment rights, Sotomayor is right: The majority’s rationale is flimsy and paves the way for widespread violation of civil liberties. The causal chain of stop, warrant check, discovery, arrest is about as straightforward as can be. Warrant checks are common practice for police after a stop, and the discovery of a warrant is hardly an unforeseen consequence of looking for one. Moreover, what is more flagrant than a violation of the Constitution? Officer Fackrell might not have been mean to Strieff, but he abrogated his Fourth Amendment rights with the search. This is not even under dispute. The idea that, somehow, an unconstitutional stop is not a flagrant instance of police misconduct is difficult to fathom.
Sotomayor’s dissent invited praise from civil libertarians and progressives alike. The former group hailed her dissent’s first two contentions; the latter group was cheered by its third contention. First, Sotomayor argues that the majority is wrong on the merits. The exclusionary rule should apply because the unconstitutional stop is the proximate cause of the drugs’ discovery. Second, she observes that since warrant checks are a routine part of police stops, and outstanding warrants are “surprisingly common,” the majority paves the way for the widespread abrogation of Fourth Amendment rights. She is correct on both counts.
The idea that law should be used as a tool to fix unjust outcomes unfortunately seems to be driving progressives’ rush to proclaim Sotomayor’s dissent a watershed.
If these kinds of rights violations can be essentially forgiven simply because their victims were the subject of an outstanding arrest warrant, officers in high-crime areas will no longer have much to worry about. They’ll be free to stop everyone, secure in the knowledge that those without any warrants for their arrest are unlikely to take the violation of their rights to civil court. People ought to have Fourth Amendment protections regardless of their place of residence, and Strieff will contravene that principle in practice. If this case contributes to social inequity, such inequity owes itself to a corrupted legal process.
But the idea that law should be used as a tool to fix unjust outcomes unfortunately seems to be driving progressives’ rush to proclaim Sotomayor’s dissent a watershed. Though she doesn’t directly proclaim as much, Sotomayor’s heated rhetoric seems to make reference to an overarching vision of the justice system that is flawed. Her belief that people with certain life experiences ought to see the law differently has long been clear. Such a belief, of course, bastardizes law, which should not change with citizens’ identities. Sure, Sotomayor’s defense of civil liberties is consonant with the principles of conservatism, but her underlying jurisprudential philosophy is not. And the idea that the law ought to be a tool for fixing cosmic injustice — see, for instance, “The Case for Reparations,” whose author Sotomayor cites in her opinion — is even less so. So her decision to speak of racism where none can be found (Strieff was white) is peculiar, troubling.
The fourth part of the dissent, which contains the vivid language quoted above, punctuates what was a thoughtful defense of civil liberties with a misplaced call to action. It is a profound testament to the state’s routine treatment of its citizens as subjects. But it is also a troublesome endorsement of the idea that the justice system must play an active role in correcting socioeconomic inequities. Sotomayor is right to say that the Court’s opinion in Strieff will lead to a skewed process. She is wrong to suggest, however subtly, that the procedural integrity of the law is less important than the results it produces. The legal process should always be just, but it cannot produce outcomes that will always satisfy everyone.
Editor’s Note: This article has been updated.
— Theodore Kupfer is an intern at National Review.