American justice: ‘perpetually bent towards prosecution’

U.S. Supreme Court Justice Sonia Sotomayor speaks about her best-selling memoir, "My Beloved World," during an appearance at the University of Delaware in Newark, Del., Thursday, Sept. 19, 2013. (AP Photo/Patrick Semansky)

After last week’s dissent in the Strieff case, Justice Sonia Sotomayor looked like she was dusting the Wise Latina modifier-noun construction that Senate Republicans and their allies turned into an opprobrium during her 2009 confirmation hearings. Columnists have focused on the peroration, in which she explains the humiliations faced by people of color for something as dangerous as crossing the street. I want to focus on this passage in Section Three:

The Court sees things differently. To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. Ante, at 7. This is a re­ markable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.

No weasel words here – this is clear, clean prose. With dissents like this and her designation as the Court’s most liberal member, she’s looking to reclaim the cause of righteousness fought by the late Thurgood Marshall, according to Nancy LeTourneau, especially in Fourth Amendment cases:

One of the problems with our current criminal justice system is the way it is perpetually bent towards prosecution – especially when it comes to upholding the rights of poor people. That is evident when we look at everything from the amount of money we invest in prosecutors (as opposed to public defenders) to the way our court system is stacked with those who have prosecutorial experience. The latter is also true of Sotomayor’s background. But perhaps this is what she meant when she said she “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.”

I can’t think of ways to explain to skeptics on the right, but often, regrettably, on the left, how identity colors in subtle tints; to hear these skeptics tell it, the only truly objective judge and critic, color blind and impartial, is a white man, or, better, a sourness towards individual rights and a penchant for giving institutions the benefit of the doubt. Clarence Thomas benefitted from affirmative action and promotions from Republican presidents, which enraged him; he didn’t feel qualified enough. But conservatives don’t mention how this posture influenced his decision making.

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