Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
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.