#constitutional law

about done with my conference paper for APSA. from the intro:

What, then, makes Sotomayor’s dissent so remarkable? Numerous commentators noted Sotomayor’s citations to James Baldwin, Michelle Alexander, and Ta-Nehisi Coates, critiques of police practices, and potential allusions to #BlackLivesMatter. In this paper I read Sotomayor’s dissent in Utah v. Strieff as a mode of black political thinking, or at least put her dissent in conversation with black thought. To do so, I take up the aspects of her dissent picked up on by media outlets, but also theorize her writing as a form of political phenomenology, and as in loose connection to Afro-pessimist scholarship on blackness, antiblack racism, and social death. These potentially radical dimensions of her dissent exist in tension, however, with the structural and institutional position of the Supreme Court as an entity often effecting dehumanization and depersonalization, especially when it comes to people of color and/or those convicted of a crime (Dayan 2011). On one hand, Sotomayor’s dissent operates as political thought and phenomenology concerned with the question of racial injustice and in conversation with black political thought. On the other hand, as Colin Dayan notes, one way of making sense of American jurisprudence on confinement, punishment, and race is to conceptualize it as the “obscene made lawful,” a “state-sanctioned degradation” through which “personality is recognized, threatened, or removed,” all constituting a “legal history of dispossession” (2011, xii). Monica C. Bell argues that Sotomayor’s dissent in Strieff does indeed “understate” the problems of racism vis-à-vis Fourth Amendment jurisprudence (2017, 2057–58). The majority of the paper concerns itself with articulating the multidimensional critique and political theorizing of the dissent, turning to the substantial restrictions on her radicalness toward the end of the paper. I thus intend a dual movement of both pushing Sotomayor’s dissent into the register of political theory and critical race theory and exploring the considerable limits on the critical potential of her dissent. 

My approach to Sotomayor’s writing in Utah v. Strieff takes a cue from Dayan, who conceptualizes her project as “seek[ing] to know what happens to conventional historical and legal sources when they are pressed to answer unconventional questions,” especially in relation to issues of personhood (xi). She does this by pressing case law into conversation with issues such as slavery, the legal fiction of civil death, jurisprudence surrounding prison conditions and confinement, and the legal status of dogs, as well as numerous apparitions and ghosts in and around the law. I take Sotomayor’s dissent and press it to answer questions such as: how does #BlackLivesMatter circulate in and influence the discursive economy of law?; can Sotomayor be engaged in a project of black political thought?; how could a Supreme Court opinion construct a phenomenology theorizing racial injustice and lived experience?; are there connections between Sotomayor’s writing and Afro-pessimist thought on social death and the political ontology of race? Sora Y. Han notes in her critique of the strict scrutiny doctrine that “the fundamental relationship between state racism and democratic principles is most intimately drawn in the judicial life of law—the institution of law’s written interpretation,” which produces the near-impossible “difficulty of describing in juridical-political terms a position of suffering for which there is no justification—being subject to state action motivated solely by race, subjection under racial animus” (2011, 109–10). I claim that that Sotomayor’s dissent in Utah v. Strieff partially overcomes this institutional interdiction to actually articulate race-based subjection in judicial terms. My approach throughout the paper focuses on taking seemingly minor aspects of Sotomayor’s dissent—citational practices, specific phrases, sentence construction, rhetorical moves, and so on—and expanding outward from the specificities of her writing to broader legal, political, and social theorizing. I thus work to engage in a close reading of her dissent and to take that dissent in unexpected yet generative directions. 

The first section of the paper provides an overview of Utah v. Strieff, summarizing the facts of the case, the majority opinion written by Justice Clarence Thomas, and some of the more conventional legal reasoning found in Sotomayor’s dissent. From there, I examine the invocation of black thinkers and evocation of #BlackLivesMatter in her dissent, working outward from her citational practices and two key passages to contend that Sotomayor is centrally concerned with questions of race, racism, blackness, and antiblackness. Next, I read Part IV of the dissent as a phenomenology of being stopped and searched, one that brings lived experience and embodiment into Supreme Court discourse, and focuses attention on the systemic racialization of police conduct and of stop-and-searches. Putting Sotomayor in conversation with Sara Ahmed (2006) and Colin Dayan (2011), this section contends that Sotomayor’s phenomenology enlivens her legal writing, in opposition to the tendency of legal writing to evacuate liveliness and experience. The subsequent section proceeds from Sotomayor’s two mentions of “civil death” in the dissent to an investigation of historical and contemporary modes of civil death, all vis-à-vis the political ontology of social death and antiblack racism. Here, I depart some from Sotomayor to examine the analysis of the “new civil death” by Gabriel Chin, whom Sotomayor cites twice, juxtapose Chin with contemporary discussions of social death, and eventually turn back to Sotomayor and the indirect entry of the concept of social death into her jurisprudential discourse. I conclude by working through some of the tensions between the racial justice critique Sotomayor constructs and the structural limitations imposed by that critique’s situatedness in an institution complicit in the perpetuation of white supremacy, conceptualizing Sotomayor’s dissent as a “phantom opinion.”

the abstract:

Can black political thought challenging racial injustice emerge from the legal writing of a Supreme Court Justice? To explore this question, this paper analyzes Justice Sonia Sotomayor’s dissent in Utah v. Strieff (579 U.S. ___ (2016)), a Fourth Amendment case regarding police conduct. I argue that through multiple rhetorical and theoretical moves, Sotomayor’s dissent gives legal life to racial oppressions in a way that is potentially in conversation with black political activism and black political thought. My interpretation of the dissent makes three claims. First, I examine the phrases and citational practices that connect Sotomayor’s writing to #BlackLivesMatter and black political thought. Second, I work with Sara Ahmed’s Queer Phenomenology to theorize Sotomayor as constructing a phenomenology of being stopped and searched that brings the habitual lived experience of people of color to the center of legal discourse. Third, I work from Sotomayor’s invocation of “civil death” to put her dissent in conversation with recent Afro-pessimist theory on social death and the afterlife of slavery. These radical dimensions of her dissent exist in tension, thought, with the structural and institutional position of the Supreme Court as an entity often effecting dehumanization and depersonalization, especially when it comes to people of color and/or those convicted of a crime. I thus intend a dual movement of both pushing Sotomayor’s dissent into the register of political theory and critical race theory and exploring the considerable limits on the critical potential of her dissent.

I’m working on a conference paper about Sonia Sotomayor, and especially her dissent in Utahv.Strieff (2016). One part of the paper uses Sara Ahmed’s Queer Phenomenology to try to think through what Sotomayor is doing in the dissent. Here’s some of what I wrote today, in draft form: 

Sotomayor’s dissent pushes further than its citational practices alone. This section argues that Sotomayor constructs, in Part IV of the dissent, a phenomenology of the bodily experience of being stopped and searched, which I explore through Sara Ahmed’s theorization of a “phenomenology of ‘being stopped.’”(2006, 139) In doing so Sotomayor enables, at least for a few pages, the loftiness of a Court opinion to reach down and connect to lived experience. Dayan contends that law and its “rituals” creates new forms of legal personhood that often do not have connection to law as it is lived by those the law affects—by those whose personhood is put into question, disfigured, made ghostly, or seized in the operations of law. She focuses on the “law’s power to define” as “mak[ing] things on its own terms, terms that may or may not be accountable to experience” (216). This entails, for Dayan, “unearthing … the ‘dry bones’ of law and giving them life in unexpected places,” something that is possible only “outside the guild of lawyers” (xi). And yet, in her dissent in Strieff, Sotomayor performs this unearthing and enlivening from within not just the guild of lawyers, but from inside the Supreme Court itself—albeit, of course, in a decision in which she is in the minority. While Dayan’s overall argument is essential, we see in Strieff the occasional crack in the façade of deadened legal language through which law might illuminate life. 

Sotomayor’s dissent works against the tendency of obscuring experience that Dayan identifies—a tendency that the majority in Strieff partakes in—by providing a detailed and I argue phenomenological analysis of what being stopped and searched entails. Notably, she opens Section IV with the disclaimer “Writing only for myself, and drawing on my own professional experiences…” (9-10). No longer joined by Ginsburg in the dissent, Sotomayor makes explicit the turn to personal experience, to the law as lived. She marks this dissent as something different, and marks herself as a living, experience person, even in her position as a Justice of the Supreme Court. What follows involves bringing to the Court a detailed account of being stopped that integrates a phenomenology of the stop and search with a command over Fourth Amendment precedent. 

Part IV of the dissent commences, following Sotomayor’s avowal of drawing on her own professional experience, with her assertion that she “would add” to her dissent that “unlawful ‘stops’ have sever consequences much greater than the inconvenience suggested by that name” (10). For her, the naming of the stop in an opinion does not capture its reality; conventional legal rhetorics are not enough to grapple the law as lived. Furthermore, while “many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more” (10). It is not that all experience being stopped in the same way, but rather that the experience of being stopped and searched is differentially distributed. Sotomayor writes that while Strieff is white, “it is no secret that people of color are disproportionate victims of this type of scrutiny” (12). Thus, we should not focus primarily on the lived experience of any random person living in the United States, or of a generic colorless (read: white) citizen. Rather, conceptualizing the stop-and-search encounter with police requires proceeding from the lives of the people of color disproportionately targeted by police. 

In this sense, Sotomayor recognizes and makes legible in her dissent what Ahmed calls in her queer phenomenology a “political economy” of stopping (Ahmed 2006, 140). This political economy analyzes how “stopping…is distributed unevenly between others” and how the stop and search “is a technology of racism: “some bodies more than others are ‘stopped’ by being the subject of the policeman’s address” (139-40). The third chapter of her work examines the racialization of space, contrasting “the ease with which the white body extends itself in the world through how it is orientated” (a phenomenology of “the ‘I can’”) with a Frantz Fanon-inspired “phenomenology of the black body” that “could be described in terms of the bodily and social experience of restriction, uncertainty, and blockage” (a phenomenology of “the utterance ‘I cannot’”) (138-9). She delineates two different modalities of phenomenology: 

 …whiteness becomes a social and bodily orientation given that some bodies will be more at home in a world that is orientated around whiteness. … For bodies that are not easily extended by the skin of the social, bodily movement is not so easy. Such bodies are stopped, where the stopping is an action that creates its own impressions. Who are you? Why are you here? What are you doing? … A phenomenology of ‘being stopped’ might take us in a different direction than one that beings with [whiteness and] motility” (138-9). 

I argue that in her dissent Sotomayor engages in this second mode of phenomenology, one that interrogates the legal mechanisms that authorize the stopping from the perspective of one who is stopped and details the impressions such stopping makes. 

Only those bodies subject to constant stopping “realize how degrading a stop can be,” and their experience is most important for examining how “this Court has given officers an array of instruments to probe and examine” as a result of Strieff—which itself is only the most recent case in a long trajectory of cases weakening Fourth Amendment protections. The language Sotomayor uses in her phenomenology is striking, especially given the venue. In the span of only the three pages of Part IV on their own, she describes the rampant stop and search practices as (10-12): “degrading”; an “indignity”; making the person being stopped “‘helpless’ (citing Terry v. Ohio, 392 U.S. 1); placing one under an “officer’s control”; effecting civil death (about which more in the next section); subjecting one to “humiliation” and a “violation” of one’s “dignity”; producing a “double consciousness”; and making one’s “body…subject to invasion.” All of this language suggests that those subject to being stopped at any time, for no particular reason, experience a loss of personhood and bodily integrity. Dayan analyzes the ways that “law encapsulates, sustains, and invigorates philosophies of personhood,” contending that American law has constructed a set of “negative personhood” statuses as a series of “legal disabilities,” many of which depersonalize and disfigure (in multiple sense of the word) people of color and/or those convicted of crimes (2011, xii). Sotomayor’s dissent, rather than further entrenching the seizing of personhood as much of the Court’s jurisprudence does, uses its positionality within the official legal discourse to unearth the way the Court has participated in the construction of negative personhood and legal disability. The effect of the Court’s decisions when it comes to the Fourth Amendment is to ensure that the bodies of people of color constantly experience a political economy of stopping and cannot extend into space, with the result of this being the robbing of their very personhood.