Supreme Court Justice Sonia Sotomayor, a Bronxite with a long and decorated career in academia, law, and government, has been making New York proud lately by doing something rather simple: laying out the bare truth in often fiery dissents to her colleagues’ orders, which these days are often not even full opinions but unsigned orders on the so-called shadow docket.
The latest flare-up came with a Supreme Court order to stay a district court ruling that had blocked ICE, the federal immigration enforcement agency, from engaging in so-called roving patrols in Los Angeles and other parts of Southern California. The district court judge in that case had considered what amounted to a mountain of evidence showing that the federal agency was trawling for people to arrest on little to no basis. She found that they were acting without warrants, any real probable cause or any real knowledge of whom they were targeting, instead relying on factors like ethnicity, language and place or type of work. As the judge pointed out, this type of profiling and indiscriminate arrest is unconstitutional, for reasons that should be relatively obvious even if you are not a legal scholar.
In response, the Trump administration did what it has done over two dozen times so far since it took office: It ran to the Supreme Court with a so-called emergency application meant to circumvent the normal judicial process, instead shifting to one where the court issues orders without the benefit of oral arguments or full consideration of the case. SCOTUS obliged and issued a decision that gives the green light for federal agents to pursue and detain people based on the factors the district judge had forbidden as illegal profiling. As Sotomayor pointed out, this effectively creates a large class of people subject to summary arrest at any time – who therefore must carry proof of their legal status at all times. She wrote that the order meant the Constitution no longer protected people “who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little. Because this is unconscionably irreconcilable with our Nation’s constitutional guarantees, I dissent.”
I think these dissents particularly resonate not just because Sotomayor is talking about the law, but because she’s talking about the reality of how power works in a way that most judges tend to skirt around. I can definitely recommend the folks at the “5-4” podcast for their sustained effort to read specific decisions and the broader behavior of the Supreme Court in that context of realpolitik. They challenge the false premise that many jurists, lawyers, legal journalists and academics have bought into: that the law exists in a sort of pure form, discernible through careful legal analysis, and that while there may be disagreements in terms of legal interpretation, these are generally good faith attempts to get to the underlying real meaning of the law.
What Sotomayor is helping clarify is what I believe is the reality, that the law exists to some extent under politics and not the other way around. The Supreme Court has in the past several months twisted itself into knots in ways that simply are not explainable if you take a purely legalistic view of things. Their actions make much more sense if you consider them as a body interested in broadly advancing the Trump agenda. The court has completely reversed precedent not only in terms of specific decisions themselves, but in its approaches to legal analysis. The reversals range from its holdings on the scope and breadth of executive power — bad if used expansively under President Joe Biden, good if used expansively under Trump — to the ability of lower courts to block certain government actions.
None of this is exactly new, of course. Anyone who has ever believed that the application of the law existed in a realm apart from politics was, quite frankly, a rube. Still, it seems now that conservative jurists on the Supreme Court have grown tired of even presenting the façade of equally applying objective legal principles and are now comfortable with simply exercising their raw power, as if they were simply another of the nation’s political organs.
This has implications for all of us. As I wrote about last week, there’s a lot of consternation about the possibility of a ramped-up federal presence in New York City involving both federal agents and, potentially, the military. If the Supreme Court has now given federal agents a blank check to trawl through cities to detain people based on factors like where they’re standing and whether they look vaguely Latino, that obviously is going to have some very serious consequences. We have all sorts of issues that could conceivably end up before the captured court, from congestion pricing to environmental protection to Rikers.
As I also alluded to in that piece from last week, an independent judiciary is one of the factors that can help societies come back from the brink of full-blown authoritarianism, as one of the few sources of concrete power to check the ruling executive. Here, we have a court that the executive has already managed to shape to his ideological advantage, in part by using antidemocratic maneuvers facilitated by a subservient legislature. We shouldn’t forget that Mitch McConnell, the Kentucky Republican who was the Senate’s longtime majority leader, blocked hearings for President Barack Obama’s Supreme Court nominee Merrick Garland and later rushed through Amy Coney Barrett when Trump nominated her upon Ruth Bader Ginsburg‘s death, tilting the ideological balance of the court towards Trump for a generation.
The liberal minority is powerless to stop its counterparts from steamrolling the rule of law and the Constitution’s system of checks and balances, so they are relegated to doing the only thing they really can: using dissents to point out what the conservative majority is doing, and why it is a betrayal of the court’s purpose. In doing so, Sotomayor and the others can help undermine some of the court’s own credibility in ways that can be helpful down the line, when the court itself can be reformed. They know that telling the truth can be a potent weapon even when structural power is elusive.
