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Sotomayor, Breyer and the Fourth Amendment

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Yesterday, Sonia Sotomayor wrote one of the strongest defenses of the Fourth Amendment and the underlying relationship between citizen and state it implies in the United States Reports. Unfortunately, despite an 8-person court it was written in dissent, because Stephen Breyer is to the right of the Utah Supreme Court on the Fourth Amendment:

Indeed, Thomas’ holding stands the exclusionary rule on its head, creating incentives for the police to engage in illegal misconduct. If you illegally ask for someone’s ID and you don’t find anything wrong, you’re very unlikely to face a serious sanction. If you do find something, you might uncover evidence that leads to an arrest. This is precisely the kind of misconduct the exclusionary rule was intended to prevent, and, as Justice Elena Kagan explains in her own dissent, finding the outstanding warrant is constitutionally irrelevant.

Writing only for herself, Part IV of Justice Sotomayor’s is a powerful and devastating defense of the exclusionary rule and why gutting it matters. The arbitrary powers this opinion effectively gives to the police will not be applied equally β€” there is no chance that the police will start stopping people walking around Stephen Breyer’s neighborhood and asking to see their papers. These powers will overwhelmingly be used against the poor and people of color, who risk being treated “as second-class citizens.”

Citing (among others) W.E.B. Dubois, James Baldwin, Ta-Nehisi Coates, and Michelle Alexander, Sotomayor concisely explains how this arbitrary authority will be disproportionately applied to the most vulnerable citizens. “The white defendant in this case shows that anyone’s dignity can be violated in this manner,” wrote Sotomayor. “But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children β€˜the talk’ β€” instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger β€” all out of fear of how an officer with a gun will react to them.”

Rewarding the police for illegal, suspicionless searches of people doing nothing wrong is also contrary to the basic individual privacy and equal citizenship the Bill of Rights and the 14th Amendment are supposed to guarantee. As Sotomayor puts it, the Court’s holding “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Sotomayor’s argument is unanswerable, and while it’s not a surprise to see the Court’s Republican nominees ignore such concerns, it’s appalling for Breyer to join them. It’s not as if Breyer is unmindful of the issues Sotomayor raises, or has a generally bad record on civil rights issues. His dissent in Parents Involved v. Seattle School District is a brilliant, powerful demonstration of how formally equal legal language can conceal and reinforce racial hierarchies. But for whatever reason, he has a blind spot from applying this kind of analysis to some Fourth Amendment cases.

Sotomayor’s dissent should be a landmark that helps set the liberal constitutional agenda should Hillary Clinton win and produce the first Democratic-majority Supreme Court in more than 40 years by filling Antonin Scalia’s vacant seat. And one person who Clinton should not nominate for Scalia’s seat is Merrick Garland. Obama’s lame duck nominee looks too much like another Breyer on civil liberties issues. Senate Democrats should quietly help to ensure that Garland’s nomination dies in the Senate after the election. And if Clinton needs inspiration for a pick, she could do a lot worse than looking to Sotomayor.

Going back to Cardozo, there has been a certain strand of liberal technocrat that doesn’t like the exclusionary rule. Superficially, the argument (which prevails in many liberal democracies) seems persuasive: being obtained illegally doesn’t necessarily make physical evidence (as opposed to confessions) less reliable, so misconduct should be punished directly rather than excluding the evidence. But in practice, at least in the American case, the argument is wrong. An effective civil sanction to punish Fourth Amendment violations is a pipedream. And while the “inevitable discovery” exception to the exclusionary rule makes sense, the “good faith” and “attenuation” exceptions are just illogical end-runs around the rule.

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