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The Jurisprudence of Empathy Bursts the Bounds of Proper Procedure

Previously Justice Sonia Sotomayor has allowed her jurisprudence of empathy to distort clear constitutional and statutory text. This week this jurisprudence has caused her to exceed the bounds of proper procedure.

The case was Utah v. Strieff, in which the Supreme Court majority upheld the admission of evidence gathered during a police stop. The Court held that even though the police lacked reasonable suspicion for the stop, the discovery of an outstanding warrant on the defendant after the stop sufficiently “attenuated” this mistake as to permit the evidence to be used at trial.

Justice Sotomayor dissented. In the last section of her dissent, joined by no other justice, she made a series of general observations and claims about the criminal justice system. Those that have received the most attention are about racial disparities. For instance, she contends that minorities are subject to a “disproportionate” number of police stops.   While these passages are impassioned, they do not belong in this Supreme Court reporter.

First, they cannot help decide the case. The defendant did not allege that he was stopped because of his race. He happened in fact to be white.

Second, the claims Justice Sotomayor makes are controversial ones, not supported by the record in the case or indeed in any other case that has the force of law. She says she is drawing on her “professional experiences” to make her observations. But her “professional experiences” cannot legally serve as a factual basis for making judicial pronouncements. Only evidence in the record or evidence so clear that judicial notice is warranted is properly available.

She does cite a book to back up her claim of disproportion. But that book is not record evidence and is itself controversial. Indeed, my friend Heather MacDonald has argued that police stops are not disproportionate. They roughly mirror the amount of violent crime committed by members of different ethnic groups with minorities stopped even slightly less than their participation in the dangerous crimes would suggest.  I do not resolve that debate here because I have not studied the issue sufficiently. But a Justice should surely not take sides in a case without a basis in the record.

Justice Sotomayor famously claimed that she brings the perspective of “wise Latina” to her judging, and others are already celebrating these passages as showing concern for the otherwise voiceless. But her empathy once again is selective. Just as in the Michigan affirmative action case, she voiced no empathy for students denied admission because of racial and ethnic preferences, here her empathy does not appear to  extend to the minorities who are saved from violence by the guns police find in stops.

This not to say the case was correctly decided. Justice Elena Kagan, unlike Justice Sotomayor, wrote a powerful dissent. But the way to decide the case is on the basis of law. Facts that are not in the record have this in common with the empathetic emotions that prompt recourse to them.  Neither has been subject to the cut and thrust of the adversary procedures that help guarantee justice.

Reader Discussion

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on June 22, 2016 at 07:50:58 am

Bravo, John: "the claims Justice Sotomayor makes are controversial ones, not supported by the record in the case or indeed in any other case that has the force of law. She says she is drawing on her “professional experiences” to make her observations. But her “professional experiences” cannot legally serve as a factual basis for making judicial pronouncements. Only evidence in the record or evidence so clear that judicial notice is warranted is properly available."

"Wise Latina" = pretense for exceeding her judicial role and deciding cases based on her personal predilections. Outrageous.

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Mark Pulliam
on June 22, 2016 at 08:28:30 am

And to all those NeverTrumpsters out there, expect more, MUCH MORE, of this when Madame Hillary is appointing 3-4 SCOTUS Black Robes.
Couple this with Tushnet's (sp?) advocacy of aggressive imposition of Progressive values in the Judiciary AND the Executive and we are in for a very empathetic time, kiddies.

It is, BTW, quite hilarious (and something I missed when first reading the blurb on the case) that the defendant was white. Oh well, at least her empathy is rather broad, isn't it? I wonder would that empathy extend so far as to include "conservatives"

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gabe
on June 23, 2016 at 21:02:52 pm

I have to disagree with the majority opinion here on the basis of the notion that the existence of an avenue or proper procedure does not excuse flagrant misconduct, as such that the officers had opportunity to learn of the warrant before the stop, which would have made the stop lawful, but elected not to learn of this information at the proper time. It flies in the face of the basic concept of the rule of law to allow the government to evade judgment against them on manipulative technical grounds, as is common practice in our country today, Especially, when we must keep in mind that the major point of constitutional law is to severely restrict the government in its actions. That said, I must also support J. Sotomayor in her dissent, which is most likely intended to frame the case within the larger context of society, i.e. to make for a point which is more generally applicable to the whole of society, as opposed to narrowly focused on a single situation. This has been done historically all throughout case law. Notably J. Scalia did this in his dissent In Lawrence et al. V. State of Texas, where he commented on the (then speculative) issue of same-sex marriage which had nothing to do with the case that was then before the court (which extended no further than an issue of criminal law and privacy rights.) However, J. Scalia stated in that dissent , in basic essence, that the majority had explicitly created a legal doctrine for marriage, and thus set the ball rolling, which he was not prepared to do at that time, and he clearly drawed upon his his "professional experience" in coming to that conclusion, as it was based on, what was at the time, pure speculation. But yet the conservatives cant stand it when the liberals point out the same thing the author points out here, and resort to the defense of that dissent. So which way is it? What's good for the goose is good for the gander, and the conservative justices engage in this sort of thing on a regular basis, and conservatives defend against the very point the author attempts to submit here, so I find that overall, its relatively contradictory.

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A. Scott Fulkerson
on June 23, 2016 at 21:10:18 pm

Best case for the democrats: The second Hillary makes office she'll get impeached, and possibly end up getting indicted over the email thing. Bernie Sanders doesn't stand a chance because he's too much of a outright communist. Chances are after B. Hussein Obama's antics with foreign policy, the gun-control issue, and his over-reaching, possibly illegal, and potentially harmful use of the executive order, that the people are probably NOT going to be voting for the democratic party once Trump exposes all that for what it really is. After that the only people who will be voting democrat are the people whom are either uneducated on the issues or up denial, and I don't mean the river in Egypt. In short- get ready for a conservative republican majority yet again.

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A. Scott Fulkerson
on November 10, 2016 at 06:18:16 am

[…] of Empathy Bursts the Bounds of Proper Procedure, Libr. L. & Liberty (June 22, 2016), http://www.libertylawsite.org/2016/06/22/the-jurisprudence-of-empathy-bursts-the-bounds-of-proper-pr… [https://perma.cc/LPV9-EUAP] (contending that Justice Sotomayor’s “impassioned” passages […]

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Image of Utah v. Strieff - Utah v. Strieff
Utah v. Strieff - Utah v. Strieff

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