This little line in Sotomayor’s dissent in Utah v. Strieff (the big improper stop & attenuation case) has been stuck in my mind.
At the beginning of section IV in her dissent she wrote:
“Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name.”
It’s the line about “drawing on my professional experiences” that really stuck out.
Why did she have to write that down? What did she think we would have assumed she was basing her opinion on? In that fourth part of her decision she goes into all the crap police are allowed to legally put people through. She explains how this may affect a person.
Obviously, she was worried she would be criticized for abandoning her legal training and basing her opinion on just her personal beliefs.
She was trying to cut off the criticism that her opinion was based on her experiences growing up as a Latina in the urban landscape of New York, where encounters with the police were probably pretty frequent.
No, she was explicitly telling us that her opinion did not rely on her personal experience and was solely rooted in constitutional law.
…and that was the big fat lie.
Now, to be fair to the Justice, this is a lie that all the high court judges are telling. They all had to be confirmed and swear and promise that their own personal beliefs and bias would not interfere with their ability to remain impartial and to rule on decisions.
They all make the promise, we all know they can’t live up to.
Do we think that Thomas, Alito, and Scalia (when he was around) kept their personal views and opinions on the proper role of government out of their interpretations of the constitution?
This is how the game is played. You have to get up there raise your right hand and say:
“I am a legal robot, I will not let my humanity enter into my decisions, I can do this. I promise.”
But we all know better.
This is the kind of stuff we go back and forth over at the Premium Nuggets Podcast.
Talking about the cases doesn’t always mean just learning the rules and the doctrines being applied. We really get in there and look at the motivations behind decisions.
This is how we remember the cases and really nail down the ideas. Afterall, we too are just people. It’s the people stories that make all this legal mumbo-jumbo really stick.