Hit & Run

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 / Flickr.com

"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.