Reprinted from The Nation
The US Supreme Court just made a deeply flawed, and profoundly unsettling, decision that upsets historic protections against using evidence obtained in illegal searches to convict Americans of wrongdoing.
The decision, announced Monday, reinstates the particular convictions of a Utah man who was tried on drug charges. But this is about much more than one case. The Court's 5-3 determination effectively signals that police officers do not themselves have to follow the letter of the law when they are enforcing the law. The calculus, argued dissenting Justice Elena Kagan, "practically invites" police to illegally stop Americans who are not acting suspiciously.
That was fine by a Court majority that included Chief Justice John Roberts, conservative Justices Clarence Thomas, Samuel Alito, and Anthony Kennedy, and moderately liberal Justice Stephen Breyer. Justice Thomas wrote in a convoluted majority opinion that evidence gathered in an illegal search could be used to arrest and convict the target of the search because the Court majority did not find indications of "flagrantly unlawful police misconduct" in an unconstitutional stop in Salt Lake City parking lot, and because the officer eventually learned of an outstanding warrant against the man who was targeted.
The majority ruling so unsettled Justice Sonia Sotomayor that she wrote a scathing dissent, which spoke with the fury of the classic dissents of Justice Louis Brandeis and Oliver Wendell Holmes Jr. that almost a century ago helped to frame our modern understanding of basic liberties. The dissents of Justices Brandeis and Holmes laid the groundwork for later decisions by more enlightened Court majorities.
In her remarkable dissent, Justice Sotomayor found herself raging against the dying of the more enlightened approach that the Court had long accepted as a necessary defense of civil liberties. "The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights," wrote Justice Sotomayor.