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Tuesday, June 21, 2016

Justice Sotomayor's Dissent in Strieff

I have written before of Justice Sonia Sotomayor's unique public profile, as represented in part by her judicial opinions. This style is characterized in substantial part by the accessibility of her arguments to the public.  There is no better illustration of this than her dissent yesterday in Utah v. Strieff. Her invocation of language and sources from a range of publicly known authors--such as Ta-Nehisi Coates--has already led to her dissent receiving substantial amounts of public attention.

But notice one other feature of her dissent: the part of it that makes these publicly accessible arguments was joined by no other Justice. Indeed, Justice Sotomayor explicitly states in that part of her dissent that she is "[w]riting for myself." There were two other dissenting Justices in that case (Justice Ruth Bader Ginsburg and Justice Elena Kagan).  Only Justice Ginsburg joined any part of Justice Sotomayor's dissent, and Justice Ginsburg did not join that last part of the Sotomayor dissent.

Is it because Justice Sotomayor states in her dissent that it is based on "my professional experiences," and it would be inappropriate for Justice Ginsburg (or Justice Kagan) to join a statement just based on insights derived from Justice Sotomayor's experiences alone? Is it because they disagree with something substantive Justice Sotomayor said in that part of her dissent? Is it because they believed it inappropriate and/or unwise to resort to this rhetorical style in a judicial opinion?


Posted by David Fontana on June 21, 2016 at 10:41 AM | Permalink


I'd guess the reason that the other justices did not join the opinion is the same reason it was so "awesome" a read for left of center publications, while also being appalling to those right of center. Its the kind of racially charged divisive rhetoric that is unlikely to ever get 5 votes on the court, and its also probably a contributory factor why her side lost the case at the table.

You can't persuade people who disagree with you when you attack their integrity.

Posted by: Alex in Chicago | Jun 23, 2016 6:57:53 PM

Justice Ginsburg, as the senior Justice in dissent, assigned the dissent to Kagan. When Kagan circulated, Ginsburg joined. But in the meantime, Justice Sotomayor wrote her own highly personal dissent -- and when Justice Ginsburg saw it, she liked it so much that she joined as much of it as did not overly reflect Sotomayor's "in my experience" comment.

Posted by: My guess | Jun 23, 2016 2:36:07 PM

Justice Ginsburg, as the senior Justice in dissent, assigned the dissent to Kagan. When Kagan circulated, Ginsburg joined. But in the meantime, Justice Sotomayor wrote her own highly personal dissent -- and when Justice Ginsburg saw it, she liked it so much that she joined as much of it as did not overly reflect Sotomayor's "in my experience" comment.

Posted by: My guess | Jun 23, 2016 2:36:06 PM

If Ginsburg joined Sotomayor's Part IV, it would need a rewrite that would dilute the most compelling aspects of it. As an RBG fan, I'd like to think her non-join reflects this. There are times when it's good to have 'allies' by your side but here, talking about 'the talk' and double consciousness, Sotomayor's voice stands strongest alone.

Posted by: Daniel | Jun 23, 2016 12:48:36 PM

I am inclined to agree with the last two comments generally speaking.

It also fits into the Slate article cited. Looking it over, Kagan did speak about what "the Court" did though also noted it was "sound," suggesting a personal agreement to some degree.

A bit of this was seen in her dissent in the Town of Greece prayer case, which a few strong separationists were upset about since she granted legislative prayer was okay given precedents. Her own personal stance given her druthers is unclear though maybe it's fair to assume there is some overlap since she seems to take a middle of the road approach. This made her dissent seem a bit weak to some (at least to Alito) but strategically and perhaps otherwise it also might be quite useful to use a narrower approach.

Long term, Kagan would seem the natural leader of the left/moderate ring if she had five votes.

Posted by: Joe | Jun 22, 2016 9:50:58 AM

Not sure how this fits into the discussion, but: A colleague who is a long-time Court watcher predicts that Kagan would be the intellectual driving force of a firm five-Justice (perhaps more, if Pres. Clinton gets to replace Justice Kennedy) left-leaning majority. Perhaps that means avoiding such frank, for-the-public rhetoric (although Kagan's opinions seem eminently readable for non-lawyers).

Posted by: Howard Wasserman | Jun 22, 2016 9:24:45 AM

I think Justice Kagan embraced the cost-benefit approach because by now it's the law. We saw something similar in her dissent in Luis earlier this term: She won't vote to extend precedents she disagrees with, but she'll apply them faithfully until they're asked to be overruled. That tendency could rest on principle, but it could also be pragmatic - Justice Sotomayor may see her audience more as the public, so she tries to highlight the radical and dangerous new ground she believes the court to be breaking. Whereas Justice Kagan, despite her delightfully breezy style, still sees her audience primarily as lower court judges. From that perspective, it makes more sense to cast Strieff as an aberration from settled precedent that stands for little if anything beyond the facts of the case.

Posted by: Doug | Jun 22, 2016 2:07:41 AM

These are fantastic and fascinating comments. On somewhat of a tangential note, I wrote an essay about the stylistic differences between Kagan and Sotomayor last year: http://www.slate.com/articles/news_and_politics/jurisprudence/2015/01/obama_s_supreme_court_justices_elena_kagan_and_sonia_sotomayor_have_elite.html

Posted by: David Fontana | Jun 21, 2016 6:47:49 PM

On the "joining" question, you may be asking the question backwards. After the vote, it was clear who the three dissenters were. Ginsburg, as the senior Justice in dissent, got to assign the principal dissent. She may have assigned it to Kagan and joined it, but Sotomayor had a different view, and decided to write separately. Because Sotomayor is senior to Kagan, her dissent appears first, but that doesn't mean it was the "principal" dissent--Kagan may have drafted hers first.

Posted by: Steve H | Jun 21, 2016 3:19:43 PM

Everyone here knows much more Fourth Amendment law than I do. But I was struck by the fact that Justice Ginsburg joined all but part IV of Justice Sotomayor's dissent, and also joined all of Justice Kagan's dissent, but yet neither Kagan nor Sotomayor joined each other. Perhaps Ginsburg sees agreement that they do not see. Or perhaps I'm reading too much into it -- which is probably the case.

Posted by: Aaron L. Nielson | Jun 21, 2016 3:11:18 PM

Thanks for the link to Kagan's thesis. Kagan writes, in the conclusion to the thesis, "[T]his deserves to be highlighted: By characterizing the exclusionary rule as a deterrent device, the Burger Court has made possible either the continued modification or the complete elimination of the rule." And a few pages later, "Today, the Court may hold that the rule does not work as a deterrent; alternatively, the Court may hold that some other, less costly measure works equally well." I think Kagan was right on these points -- to explain the exclusionary remedy solely in terms of deterrence is to lay the foundation for abolishing the rule. So what should we make now of Kagan's Strieff dissent, which argues for exclusion in the particular case, but also insists that deterrence is the only rationale for the exclusionary rule? If Kagan is intellectually honest, will she continue to treat the exclusionary rule as a constitutional requirement?

I believe the strongest arguments for a constitutionally required exclusionary remedy have little to do with deterring police misconduct. But not for the first time, most of the Court sees things differently than I do.

Posted by: Alice Ristroph | Jun 21, 2016 2:24:11 PM

In the current criminal proceedings regarding the prosecution of individuals involved in the takeover of the Malheur National Wildlife Refuge earlier this year, defense counsel argues that federal officials collected evidence inappropriately. I suppose yesterday's decision puts renders that perspective moot.

Posted by: Paul | Jun 21, 2016 2:09:45 PM

David, I don't know: There are a bunch of possibilities and we don't have enough in the way of clues to say. (Although Alice's idea is certainly possible.)

Re Kagan's master's thesis that Joe links to, I think it's remarkable. It's one of the best things I've read on the development of the exclusionary rule, and she wrote it even before she enrolled in law school.

Posted by: Orin Kerr | Jun 21, 2016 1:55:27 PM

ugh ... "Its."

I think Section 4 was a personal statement that would be naturally suitable for Sotomayor to write alone. Her overall dissent has a certain personal flavor (by now, familiar "Sotomayor voice" -- her opinions for the Court tend to be more dry) that Kagan might have deemed not to her tastes. RBG at times also has a strong personal voice too and might be more open to joining Sotomayor.

Why Sotomayor didn't join Kagan's dissent is an interesting question. Alice Ristroph's comments are appreciated.

Posted by: Joe | Jun 21, 2016 1:46:00 PM

h/t Prof. Kerr ...

For those with time on their hands, one can read Kagan's 1983 thesis on the exclusionary rule. It's meaning on her views today? Who knows.


Posted by: Joe | Jun 21, 2016 1:40:21 PM

On Orin's point: Kagan endorses a cost-benefit analysis approach to the 4th Amendment exclusionary rule in which deterrence is the only relevant benefit. On this view, exclusion is appropriate only if it will meaningfully deter police misconduct; other values of exclusion don't enter Kagan's analysis. Sotomayor has a broader understanding of the rationales for the exclusionary rule. She includes not only deterrence but also the preservation of judicial integrity (and I think, the integrity of other public officials) as potential benefits of the rule.

Kagan does cite Sotomayor's dissent, even if she doesn't join it.

Posted by: Alice Ristroph | Jun 21, 2016 1:11:49 PM

Any theories, Orin?

Posted by: David Fontana | Jun 21, 2016 12:53:03 PM

Great point Orin.

Posted by: David Fontana | Jun 21, 2016 12:34:10 PM

I think it's interesting that Justice Sotomayor and Justice Kagan did not join any part of the other's dissent.

Posted by: Orin Kerr | Jun 21, 2016 11:57:15 AM

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