Supreme Court

Sonia Sotomayor's Inconsistent Defense of the Bill of Rights

The liberal justice speaks out for the Fourth Amendment, but often fails to respect the Fifth.


Credit: White House /

"There is a place, I think, for jury nullification." So said Supreme Court Justice Sonia Sotomayor in a talk this week at New York University Law School. As my colleague Jacob Sullum pointed out in response, jury nullification can be a good thing from a libertarian point of view, as it means "that jurors sometimes should consider information that the judge considers irrelevant. In a drug case, that information might include the stiff mandatory minimum awaiting the defendant, the defendant's medical or religious motivation for violating the law, or the arbitrary disparity in punishment between crack and cocaine powder offenses."

This is not the first time that Justice Sotomayor's legal views lined up with those of libertarians. In her November 2015 dissent in Mullenix v. Luna, for example, Sotomayor faulted her colleagues on the Court for "sanctioning a 'shoot first, think later' approach to policing [that] renders the protections of the Fourth Amendment hollow." Earlier that same year, during oral argument in Rodriguez v. United States, Sotomayor lectured a Justice Department lawyer on why "we can't keep bending the Fourth Amendment to the resources of law enforcement." It was a moment to warm even the coldest of libertarian hearts.

Yet Sotomayor is not always so constitutionally vigilant. During the same 2015 SCOTUS term, for example, the justices heard the case of Horne v. United States Department of Agriculture. At issue was the USDA's attempt to force a pair of California raisin farmers named Marvin and Laura Horne to surrender a portion of their raisin crop each year to federal authorities for the purpose of creating an "orderly" domestic raisin market. The central question before the Supreme Court was whether the government's attempt to confiscate those raisins (or their cash equivalent) counted as a taking under the Fifth Amendment, which requires the payment of just compensation when the government takes private property for a public use.

"Sounds like a taking to me," observed Justice Stephen Breyer during oral argument. And Breyer was not the only one who thought so. The Court ultimately ruled 8-1 that the government's attempt to take raisins qualified as an attempt to take raisins. Only Justice Sotomayor agreed with the USDA's claim that the Fifth Amendment had no bearing on the matter because the case did not involve any sort of taking at all. "The government may condition the ability to offer goods in the market on the giving-up of certain property interests," she asserted in her dissent. So much for not bending the Bill of Rights in favor of the government.

Justice Sotomayor is often a welcome voice in defense of civil liberties and the Fourth Amendment. Too bad she can't seem to muster the same respect for the Fifth.

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  1. “The government may condition the ability to offer goods in the market on the giving-up of certain property interests,” she asserted in her dissent.

    The ridiculous stretching of the Commerce Clause has now given way to a sitting Supreme Court Justice openly declaring that THE GOVERNMENT OWNS THE MARKETPLACE.

  2. “There is a place, I think, for jury nullification.” So said Supreme Court Justice Sonia Sotomayor

    Yes there is. It’s called the courtroom.

    “The government may condition the ability to offer goods in the market on the giving-up of certain property interests,” she asserted in her dissent.”

    It may? Based on what, other than theft?

    1. Based, of course, on the FYTW clause.

  3. “The government may condition the ability to offer goods in the market on the giving-up of certain property interests,” she asserted in her dissent.”

    What a steaming pile of shit.
    I have to petition the government to offer goods on the market and then pay the government for the allowance to do so?
    Does this woman understand the concept of natural rights? Does she understand that the constitution is written to limit the government’s power?

    1. In answer to your questions the wise Latina says “No.”

    2. It’s possible that she understands the concept of natural rights but doesn’t find it relevant when discussing legal or political matters.

    3. “The government may condition the ability to offer goods in the market on the giving-up of certain property interests,” she asserted in her dissent.”

      Don’t think she’s right? Ask yourself this…. can the government impose a tax on the sale of goods? Substitute the word “tax” or “tariff” into this raisin argument and suddenly it seems very similar to every other sale that takes place in this country.

      Or how about this for “giving up certain property interests”. Can the feds mandate that anyone offering up a car for sale issue a 3 year warranty? Or can they mandate that anyone selling timeshares must offer a 15 day out clause?

      I’d say the government has already gone way, way past the line of “constitutionality” in this area. Enumerated powers are for pussies

  4. Why does Reason keep doing this?

    Her ‘defense’ of the Fourth is not coming from any place a libertarian would feel comfortable–as her repeated shitting on the BoR should indicate.

    1. I doubt any of the Justices’ opinions “come from any place a libertarian would feel comfortable” if we are to judge such places by the totality of the Justice in question’s opinions.

      I will say that the 8-1 raisin case dispels my previous statement that Sotomayor is at least consistently better than Kagan.

    2. Are you saying we should only agree with things where both the actions are good and the motives are pure? Because how can you know the motives at all?

      1. No, we should agree that Sotomayor is a statist cunt who sometimes accidentally says things that don’t completely horrify us.

  5. Mullenix v. Luna

    Literally one of the worst SC decisions ever. Definitely in the top 5.

  6. This is not hard to explain. Sotoymayor doesn’t trust cops but is the expected government hack if the case involves bureaucrats. That is really all that is going on here. If the cops want to search your car, you have a right to say no because in Sotomayor’s view cops can’t be trusted. If some bureaucrat asks you a question, you have to answer because Bureaucrats are well meaning noble public servants and only someone who is guilty would ever not want to cooperate with them.

    1. If only Comrade Sotomayor knew who it was that enforced a bureaucrat’s edicts…

      1. If only. The other thing that is going on is that the people in the 5th Amendment case were middle class and ran a business. By Sotomayor’s thinking, those people can fend for themselves and are not entitled to civil rights in the same way a poor or a minority, who doesn’t engage in commerce, is. Cops in contrast usually are dealing with poor people and minorities who are the type of person that courts are there to protect.

        That is how Progs actually think. It is hideous when you lay it out like that.

        1. Someday, maybe she’ll make the mental connection between bureaucratic edicts, heavy-handed police enforcement, and poverty.

          1. Not likely. Making that connection would mean admitting that she was horribly wrong in the past and hurt a bunch of people with her decisions.

    2. ^This^

      For her it’s not about restricting the reach and power of government as a whole, it’s about restricting the reach and power of particular agents of the government she doesn’t personally like.

      Still, I’ll take her vote on 4th Amendment cases any day of the week.

      1. If she is going to be there anyway, sure. She could be worse.

  7. Sotamayor is a liar as well.

    During her confirmation hearings, she was asked about the Second Amendment and said that the Heller decision was “settled law”.

    In the subsequent McDonald case, she joined the dissent which called for Heller to be overruled.

    She is a fraud.

    1. Goddamit, you are killing my “Soniomayor has some redeeming qualities” optimism, here!

      1. “Goddamit, you are killing my “Soniomayor has some redeeming qualities” optimism, here!”

        Maybe she has a fatal disease…

  8. “The government may condition the ability to offer goods in the market on the giving-up of certain property interests,” she asserted in her dissent.”

    That’s an odd word to use there, that “ability”. Is it a “right” which is subject to certain limits with regards to other’s rights (I have a right to free speech in a public meeting but that doesn’t mean I can interrupt and shout down other speakers) or is it a “privilege” granted by the government? I have the “ability” to rob a liquor store, but I have neither a right nor a privilege to do so. Is Sotomayor being coy, deliberately vague on just how far the government can go in imposing conditions? Does she think that freedom of association only applies insofar as none of that filthy lucre is involved?

    1. What makes you suspect that she believes in freedom of association?

      From what I can tell pretty much all of the justices see themselves as the final review of government policy. Not following the law… policy. Their oral arguments always center on the impacts, outcomes and consequences of a law or their ruling in a case. If they viewed themselves as the arbiters and protectors of the law, they would never do this.

      Clearly they see themselves in a role as “above” the other two branches, having final say over whether the other branches actions are “just”. “Constitutional” is a synonym for “good” in their world.

      1. My reading of many SCOTUS cases suggests that this is pretty much the case with the progressive justices. But not with the conservative ones. But Scalia recently made a break in the wrong direction in the U. of Texas affirmative action case currently before the court when in oral arguments he wondered whether affirmative action actually hurts minorities because they’re not prepared for the colleges to which they’re admitted, as if that has a bearing on the legal principles of the case.

  9. “on the giving-up of certain property interests”

    One might call that the “taking” of certain property interests.

  10. Her dissent in Home v. USDA was fucking idiotic, and she may even be smart enough to realize it.


  11. How is it a libertarian position to desire SCOTUS to limit how local police act? How is it a libertarian position to take such decisions out of the hands of local government and place it in the hands of the federal government?

    A community may have legitimate reasons to want a police force that is trigger happy, just like a private property owner might, for example when they are subject to high levels of violent crime.

  12. When you have no grounding principles, inconsistency and contradiction are the result. She’s probably never contemplated property rights as the foundation of liberty, in all her life.

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