Sonia Sotomayor's Lonely Battle to Give the Voiceless a Voice at the Supreme Court
In two new opinions, the justice continues to provide a small grace to victims of unconstitutional abuses ignored by her colleagues.
'Every year, the Supreme Court receives about 10,000 petitions and hears only around 80 cases. Four justices have to vote to hear an appeal, which ensures that thousands of petitions are swatted away without comment, leaving the lower court’s decision as the final word. Unfairness is baked into the cake: SCOTUS’s desire for tidy docket management means that egregious wrongs go unrighted simply because four justices lack the nerve, the bandwidth, or the desire to address them. A majority of the court seems content with this state of affairs. Not Justice Sonia Sotomayor. In recent years, Sotomayor has emerged not only as the conscience of the court but as the watchdog of its docket. She continually writes separate opinions to flag cases involving extreme cruelty, lawlessness, and other inequities. Her goal appears to be to urge the public to pay attention to the injustices that the Supreme Court lets stand.
On Monday, the Supreme Court turned away two cases, Brown v. Polk County and Whatley v. Warden, with appalling facts, prompting Sotomayor to write separately about each of them. Start with Brown. In 2017, Sharon Brown was arrested for suspected shoplifting in Polk County, Wisconsin. While in the county jail, two inmates accused her of hiding a packet of methamphetamines in a body cavity. Jail officials sent Brown to the hospital, where a doctor used a speculum to open and examine her vagina. When he found no drugs, he inserted the speculum into Brown’s anus and opened it. The doctor’s headlamp then went out, so Brown waited with the speculum in her anus while he searched for a flashlight. After several minutes, he found the flashlight and discovered no drugs.
Brown sued the jail officials for violating her Fourth Amendment right against unreasonable searches. She argued that the Constitution requires correctional officers to obtain a warrant based on probable cause before searching the body cavities of a pretrial detainee. (It should be noted that pretrial detainees like Brown have not been convicted of a crime and are legally innocent.) The lower courts ruled against her, finding that officers need only a reasonable suspicion for such a search, and had it in this case. Brown appealed, urging the Supreme Court to rule that a warrant, rather than mere reasonable suspicion, is necessary to conduct such an invasive search of pretrial detainees.
SCOTUS turned away the case without comment. Justice Amy Coney Barrett recused herself because, while serving on the 7th U.S. Circuit Court of Appeals, she participated in the decision not to take up the case as a full court after a three-judge panel ruled against Brown. Sotomayor concurred with the court’s decision not to hear Brown’s appeal, writing that SCOTUS should wait to act until other courts consider the issue. (Under an informal rule, the Supreme Court lets legal questions “percolate” in the lower courts before rendering a verdict.)
Following this gesture of collegiality, however, Sotomayor recounted the revolting facts with an eye toward the systemic racism and sexism that lie just behind them. She quoted extensively from Brown’s testimony, noting that, when the doctor removed the speculum from her anus, she said: “I immediately started crying. I couldn’t stop. I cried myself to sleep. I cried all the way back to the jail. I cried the whole time I was getting dressed.”'>>>
https://slate.com/news-and-politics/2021/04/sonia-sotomayor-supreme-court-injustice-body-cavity-dissent.html?