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ABSTRACT
In 2016, Justice Sonia Sotomayor wrote a stunning legal opinion that challenged the Supreme Court’s ruling in Utah v. Strieff and marked a watershed moment for her voice of dissent. In this essay, I argue that Justice Sotomayor’s Strieff dissent was animated by a praxis of rebellious knowledge production – disruptive moves of legal opinion writing that rework interpretive traditions of context, authority, and lived experience to center an episteme of race-consciousness in the law. This study points to the possibilities of outsider jurisprudence as a rhetorical praxis of legal opinion writing and illuminates the democratic promise of Sotomayor’s judicial voice.
Notes
1 Utah v. Strieff 579 U.S. ___ (2016).
2 Mark Joseph Stern offers a concise summary of this loophole: “Typically, when police illegally stop an individual on the street without reasonable suspicion, any fruits of that stop – such as the discovery of illegal drugs – must be suppressed in court, because the stop was ‘unreasonable seizure’ under the Fourth Amendment. Strieff gave the justices an opportunity to affirm this constitutional rule. But instead, Justice Stephen Breyer joined the court’s four conservatives to add a huge loophole to that long-established doctrine. In an opinion by Justice Clarence Thomas, the court found that if an officer illegally stops an individual then discovers an arrest warrant – even for an incredibly minor crime, like a traffic violation – the stop is legitimized, and any evidence seized can be used in court.” “Read Sonia Sotomayor’s Atomic Bomb of a Dissent Slamming Racial Profiling and Mass Imprisonment,” Slate, June 20, 2016, https://slate.com/news-and-politics/2016/06/sonia-sotomayor-dissent-in-utah-v-strieff-takes-on-police-misconduct.html.
3 Utah v. Strieff 579 U.S, slip op., 1.
4 Imani Gandy, “Sonia Sotomayor: A Wise Latina Writes a Wise Dissent,” Rewire News Group, June 24, 2016. Sonia Sotomayor: A ‘Wise Latina’ Writes a Wise Dissent #ABLC (rewirenewsgroup.com).
5 Utah v. Strieff 579 U.S, slip op., 1.
6 Ariane De Vogue, “Sonia Sotomayor Channels Liberal Voice on Supreme Court,” CNN, June 29, 2016, https://www.cnn.com/2016/06/29/politics/sonia-sotomayor-supreme-court-liberal-voice; Douglass Colbert, “Sotomayor ‘Tells it Like It Is,’” Rise Up Times, June 24, 2016. DN! | Sotomayor “Tells It Like It Is” Slams Racial Profiling, Illegal Search and Seizure in Scathing Dissent | Rise Up Times; Irin Carmon, “Sotomayor Issues Scathing Dissent in Fourth Amendment Case,” NBC News, June 20, 2016, https://www.nbcnews.com/news/us-news/sotomayor-issues-scathing-dissent-fourth-amendment-case-n595786.
7 Stern, “Atomic Bomb of a Dissent.”
8 Mari J. Matsuda, Where Is Your Body? And Other Essays on Race, Gender, and the Law (Boston, MA: Beacon Press, 1997), 41.
9 See Katie L. Gibson, Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Rhetoric and the Law (Tuscaloosa: University of Alabama Press, 2018); Lani Guinier, “Demosprudence through Dissent,” Harvard Law Review 122, no. 4 (2008): 6–138.; Robert J. Hume, “Disagreeable Rhetoric, Shaming, and the Strategy of Dissenting on the US Supreme Court,” Justice System Journal 40, no. 1 (2019): 3–20; Raymond S. Rodgers, “Generic Tendencies in Majority and Non-Majority Supreme Court Opinions: The Case of Justice Douglas,” Communication Quarterly 30, no. 3 (1982): 232–236.
10 Catherine Langford, “Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars,” Communication Law Review 9, no. 2 (2009): 1–12.
11 Hume, “Disagreeable Rhetoric.”
12 Gibson, Ruth Bader Ginsburg’s Legacy of Dissent.
13 Guinier, “Demosprudence through Dissent.”
14 Patricia Hill Collins, “Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought.” Social Problems 33, no. 6 (1986): 14–32.
15 Thomas K. Nakayama and Robert L. Krizek, “Whiteness: A Strategic Rhetoric,” Quarterly Journal of Speech 81, no. 3 (1995): 296.
16 Foundational writings in this school include: Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling,” Harvard Civil Rights-Civil Liberties Law Review 17 (1982): 133–181; Charles R. Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal 1990, no. 3 (1990): 431–466.
17 Francisco Valdes, “Rebellious Knowledge Production, Academic Activism, & (and) Outsider Democracy: From Principles to Practices in LatCrit Theory, 1995–2008,” Seattle Journal for Social Justice 8, no. 1 (2009): 133.
18 Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Women’s Rights Law Reporter 11, no. 1 (1989): 8.
19 The term outsider jurisprudence is credited to Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” Michigan Law Review 86, no. 8 (1988): 829.
20 Mari J. Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” Harvard Civil Rights-Civil Liberties Law Review 22, no. 2 (1987): 325.
21 Collins instructs: “Black women’s experiences highlight the tension experiences by any group of less powerful outsiders encountering the paradigmatic thought of a more powerful insider community.” Patricia Hill Collins, “Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought,” Social Problems 33, no. 6 (1986): 14–32.
22 Collins, “Outsider Within.”
23 Katie L. Gibson, “The Women Take Over: Oral Argument, Rhetorical Skepticism, and the Performance of Feminist Jurisprudence in Whole Women’s Health v. Hellerstedt,” Quarterly Journal of Speech 105, no. 3 (2019): 319–340.
24 Aaron Hess and Miriam Sobre-Denton, “Setting Aside the ‘Wise Latina?’: Postracial Myths, Paradoxes, and Performing Enculturation in the Sotomayor Confirmation Hearings,” Communication Studies 65, no. 1 (2014): 11.
25 Hess and Denton, “Setting Aside,” 11.
26 Jeffrey A. Bennett, “Containing Sotomayor: Rhetorics of Personal Restraint, Judicial Prudence, and Diabetes Management,” Quarterly Journal of Speech 104, no. 3 (2018): 263.
27 Frances Negrón-Muntaner, “Confirmed: Sonia Sotomayor and the Limits of Latino Political Incorporation,” Journal of Transnational American Studies 3, no. 2 (2011): 10.
28 Negrón-Muntaner, “Confirmed,” 11.
29 Laura Krugman Ray, “Linking Law and Life: Justice Sotomayor’s Judicial Voice,” Buffalo Law Review 64, no. 1 (2016): 1–13.
30 Lázaro Lima, Being Brown: Sonia Sotomayor and the Latino Question (Oakland, CA: University of California Press, 2019), 150–172.
31 Lima, “Being Brown,” 168.
32 Utah v. Strieff 579 U.S, slip op., 8.
33 Matsuda, “When the First Quail Calls,” 9.
34 Utah v. Strieff 579 U.S, slip op., 1.
35 Utah v. Strieff 579 U.S, slip op., 7.
36 Utah v. Strieff 579 U.S, slip op., 7.
37 Utah v. Strieff 579 U.S, slip op., 8.
38 Stern, “Atomic Bomb of a Dissent”; Ford, “Justice Sotomayor’s Ringing Dissent.”
39 Carmon, “Sotomayor Issues Scathing Dissent.”
40 De Vogue, “Sotomayor Channels Liberal Voice.”
41 Ray, “Linking Law and Life,” 13.
42 Collins, “Outsider Within,” 29.
43 Kimberlé W. Crenshaw, “Toward a Race-Conscious Pedagogy in Legal Education,” National Black Law Journal 11, no. 1 (1998): 4.
44 Crenshaw, “Toward a Race-Conscious Pedagogy,” 6.
45 Utah v. Strieff 579 U.S, slip op., 12.
46 Utah v. Strieff 579 U.S, slip op., 12.
47 Francisco Valdes and Sumi Cho, “Critical Race Materialism: Theorizing Justice in the Wake of Global Neoliberalism,” Connecticut Law Review 43, no. 5 (2011): 1555.
48 Parents Involved v. Seattle School District No. 1 (2007).
49 Schuette v. Coalition to Defend Affirmative Action 572 U.S. 291 (2014).
50 Ronald Tyler, “Utah v. Strieff: A Bad Decision on Policing with a Gripping Dissent by Justice Sotomayor,” Stanford Law School Blogs, July 5, 2016, https://law.stanford.edu/2016/07/05/utah-v-strieff-a-bad-decision-on-policing-with-a-gripping-dissent-by-justice-sotomayor/.
51 Collins, “Outsider Within,” 29.
52 Ford, “Justice Sotomayor’s Ringing Dissent.”
53 Matsuda, “When the First Quail Calls,” 9.
54 De Vogue, “Sotomayor Channels Liberal Voice.”
55 Utah v. Strieff 579 U.S, slip op., 9.
56 She instructs: “Black women’s experiences highlight the tension experiences by any group of less powerful outsiders encountering the paradigmatic thought of a more powerful insider community.” Patricia Hill Collins, “Outsider Within,” 29.
57 Lisa A Flores, “Towards an Insistent and Transformative Racial Rhetorical Criticism,” Communication & Critical/Cultural Studies 15, no. 4 (2018): 349–357.
58 Collins, “Outsider Within,” 29.
59 Utah v. Strieff 579 U.S, slip op., 1.
60 Utah v. Strieff 579 U.S, slip op., 6.
61 Colbert, “Sotomayor ‘Tells it Like it Is.”
62 Sarudzayi Matambanadzo, Francisco Valdes, and Sheila Velez-Martinez, “Afterword: LatCrit Theory @ XX: Kindling the Programmatic Production of Critical and Outsider Legal Scholarship, 1996–2016,” Charleston Law Review 10, no. 1 (2016): 297–377.
63 Nakayama and Krizek, “Whiteness: A Strategic Rhetoric,” 296.
64 Daniel Solórzano and Tara J. Yosso, “Critical Race Methodology: Counter-Storytelling as an Analytical Framework for Education Research,” Qualitative Inquiry 8, no. 1 (2002): 36.
65 Utah v. Strieff 579 U.S, slip op., 10.
66 Mari J. Matsuda, “When the First Quail Calls,” 9.
67 Utah v. Strieff 579 U.S, slip op., 10.
68 Utah v. Strieff 579 U.S, slip op., 10–11.
69 Solórzano and Yosso, “Critical Race Methodology,” 36.
70 Matsuda, “Looking to the Bottom,” 325.
71 Utah v. Strieff 579 U.S, slip op., 11.
72 De Vogue, “Sotomayor Channels Liberal Voice.”
73 Utah v. Strieff 579 U.S, slip op., 12.
74 Lithwick, “No One Can Breathe.”
75 Utah v. Strieff 579 U.S, slip op., 12.
76 Utah v. Strieff 579 U.S, slip op., 12; Margaret E. Montoya, “Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse,” Chicana/o Latina/o Law Review 15, no. 1 (1994): 1–37.
77 Shaun King, “Justice Sonia Sotomayor’s Powerful Supreme Court Dissenting Opinion Gives Voice to People of Color Who’ve Been Stopped, Harassed by Police,” The Daily News, June 20, 2016, https://www.nydailynews.com/news/national/king-sotomayor-powerful-opinion-voice-people-color-article-1.2680800.
78 Ford, “Justice Sotomayor's Ringing Dissent.”
79 Utah v. Strieff 579 U.S, slip op., 12.
80 Christian Farias, “The Supreme Court Just Ruled in Favor of the Police State, and Sonia Sotomayor Is Not Having It,” Huffington Post, June 20, 2016. The Supreme Court Just Ruled in Favor of the Police State, and Sonia Sotomayor Is Not Having It | HuffPost Latest News.
81 Carrie Crenshaw, “Colorblind Rhetoric,” Southern Journal of Communication 63, no. 3 (1998): 244–256.
82 Khiara Bridges, “Race in the Roberts Court,” Harvard Law Review 136, no. 1 (2022): 24–169.
83 Langford, “Toward a Genre of Judicial Dissent.”
84 Quoted in Ariane De Vogue, “Justice Sonia Sotomayor: ‘There Is Going to Be a Lot of Disappointment in the Law, a Huge Amount,’” CNN, October 7, 2021. Justice Sonia Sotomayor: ‘There is going to be a lot of disappointment in the law, a huge amount’ – CNNPolitics.
85 Quoted in De Vogue, “Justice Sonia Sotomayor.”
86 Melissa Murray, “Sotomayor Saw She Couldn’t Sway Her Colleagues. So She Talked to Us Instead,” The Washington Post, December 3, 2021, https://www.washingtonpost.com/outlook/abortion-sotomayor-dobbs-oral-arguments/2021/12/03/ba6fc4b8-53d5-11ec-8927-c396fa861a71_story.html.