The Supreme Court of the United States enjoys hallowed respect in our nation as its decisions affect every resident of the states and territories. The Court has been the battleground referee and umpire for many freedoms taken for granted without a clear sense of the processes that produce them. Court decisions emerge often from years or decades of jurisprudential development. Dissents by justices on one day may become majority opinion on another.
In 1896, May 18 to be exact, Justice John Harlan dissented in Plessy v. Ferguson, which established the principle of separate but equal public facilities based upon race. Harlan wrote:
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. . . . I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent, not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by everyone within the United States.
Fifty-eight years later, almost to the day, on May 17, 1954, a unanimous bench opined in Brown v. Board of Education:
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
Dissents that later emerge as majority rulings arise from deeply held convictions by individuals and are presented as cautionary mile markers about troubling conclusions. The emigration of Harlan’s core vision of civil rights in Plessy to Brown was, at once, profoundly simple and cognizant of social realities.
Majority opinions by SCOTUS often reflect ideological or judicial compromises among the justices but, more so, tend to mirror the prevailing social and cultural mores of the period in which they occur. That, of course, explains the error of Plessy. Dissents, on the other hand, that later emerge as majority rulings arise from deeply held convictions by individuals and are presented as cautionary mile markers about troubling conclusions. The emigration of Harlan’s core vision of civil rights in Plessy to Brown was, at once, profoundly simple and cognizant of social realities:
Every one knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. . . . But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
In an OpEd article for The New York Times last week, Linda Greenhouse documented Justice Sonia Sotomayor’s visionary role on the current SCOTUS, attributing her jurisprudence to participate in a “large unfolding story of where the country stands with respect to a particular of the legal fabric by which we govern ourselves.” [https://www.nytimes.com/2021/06/17/opinion/justice-sonia-sotomayor-supreme-court.html] In Plessy, Justice Harlan set forth his perspective on the Court’s decision noting, “the judgement this day rendered, will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.” Although Sotomayor tends to refrain from predictions, Greenhouse is of the opinion that the Justice is staking out a posture as erudite gadfly with respect to her colleagues.
In Utah v. Strieff (June 2016), she criticized the views of her colleagues as insulated from both constitutional history and contemporary realities. The 5-4 majority, led by Justice Clarence Thomas, concluded that evidence seized in an unlawful vehicle stop could be used to support a criminal conviction. Sotomayor called attention to actual data concerning vehicle stops, noting that, “It is no secret that people of color are disproportionately victims of this type of scrutiny.”
In Utah v. Strieff (June 2016), she criticized the views of her colleagues as insulated from both constitutional history and contemporary realities. The 5-4 majority, led by Justice Clarence Thomas, concluded that evidence seized in an unlawful vehicle stop could be used to support a criminal conviction. Sotomayor called attention to actual data concerning vehicle stops, noting that, “It is no secret that people of color are disproportionately victims of this type of scrutiny” iterating the cautioning Black parents give to their children about their behavior—”the talk” she called it. Echoing sentiments expressed by Harlan, she emphasized that the defendant was white, demonstrating evidence “… that anyone’s dignity can be violated in this manner.”
Even while concurring with the majority’s ultimate conclusion, Sotomayor will take an opportunity to remind bench mates of the injustice of legislative loopholes that fall unevenly upon people of color. In Terry v. United States (June 2021), the Justice called to attention the disparity regarding crack cocaine sentencing as opposed to powder cocaine. Characterizing an “extensive record of race-based myths about crack cocaine” and the lack of evidence for congressional consideration, a 100:1 ratio, Sotomayor wrote:
Black people bore the brunt of this disparity. . . . Around 80 to 90 percent of those convicted of crack cocaine offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years.
Here again, Justice Thomas authored the majority decision and rationalized the opinion, in part, by citing the support of the Congressional Black Caucus for the disparate sentencing provisions. Although writing in concurrence, Sotomayor countered, “Most egregiously, the Court barely references the ratio’s real-world impact and disregards the fact that “as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the Congressional Black Caucus came together win unanimous and increasingly vocal opposition to the law.” It is clear that the Bronx native is not shy about sharing her criticisms. Nor is she inured to her minority on the bench.
Linda Greenhouse concluded that Justice Sotomayor is both a realist and a pragmatist, understanding “that on today’s Supreme Court, she is fated to be on the losing side of many of the issues she care most about. So her project, it seems to me, is to make legible, for these times and in times to come, the context for the court’s decisions and the consequences likely to flow from them. . . . Sotomayor’s contribution is to tell us what she knows. Our obligation is to pay attention.”
Linda Greenhouse concluded that Justice Sotomayor is both a realist and a pragmatist, understanding “that on today’s Supreme Court, she is fated to be on the losing side of many of the issues she care most about. So her project, it seems to me, is to make legible, for these times and in times to come, the context for the court’s decisions and the consequences likely to flow from them. . . . Sotomayor’s contribution is to tell us what she knows. Our obligation is to pay attention.”
The voices of dissent as well as the dissents themselves are of little consolation to the parties before the Court who are on the losing side. Nearly six decades elapsed before separate-but-equal was nullified by separate-is-inherently-unequal. Sonia Sotomayor is 66 years old. The effect of her dissents, her vision of the law, remain to be seen. The Court’s present constituency would appear to mitigate against her insights prevailing in any short term. But, pay attention is the watch phrase.
Categories: CIVIL RIGHTS, crime and punishment, Issues, National, police, POLICING, prisons, racial symbols, RULE OF LAW, SCOTUS
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