If police wrongfully, but not willfully, stop an individual, examine his record, discover an outstanding arrest warrant, and then search him, may they prosecute based on evidence discovered during the search? This was the question of law recently put before the Supreme Court in the case of Utah v. Strieff. The Court, in a five-three decision, answered Yes. Justices Ginsburg, Kagan, and Sotomayor dissented.
The legal question itself is a fascinating one. As a matter of fact, not only liberals but even many libertarian-leaning conservatives disagree with the Court’s decision (for example, see here). However, let us ignore the merits and demerits of the case for a minute. In the last part of her dissenting opinion, Justice Sonia Sotomayor embarks on an impassioned presentation of the evils and negative consequences of unlawful police stops. Although in this case the individual stopped was white, Justice Sotomayor states that “it is no secret that people of color are disproportionate victims of this type of scrutiny.” She references authors as varied as W.E.B. Du Bois and Ta Nehisi-Coates to drive home her point. The majority’s decision, she writes, legitimizes police conduct that produces injustice, hostility, and distrust. (You can read the Court’s decision, and Justice Sotomayor’s dissent, here.)
What concerns me about the learned Justice’s dissent is not so much the merits of her case as their place in a Court opinion. The role of the Supreme Court is not to remedy injustices by crafting new points of law but rather to interpret existing law. If injustice exists, it can be alleviated through legislation or, depending on the circumstances, through executive decisions. The Court, however, has the responsibility of remaining true to the Constitution. If the Court decides to exceed its role, while it may possibly rectify some harm, it will have created a wrong which will far exceed the benefits, for it will have called the very legitimacy of the Law into question. If the law is not that which is created by the people’s elected representatives, but rather is something created out of thin cloth by a small group of Justices, it has no legitimacy. And if people indeed begin to believe that the law is not legitimate, they will see no moral responsibility to follow it. Such an outcome, though perhaps born of good intentions, leads to mistrust and chaos. Justice Sotomayor has a responsibility to judge the case solely through a legal lense. Her role is not to create law but rather to apply existing law.