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    Sonia Sotomayor’s Legal Phenomenology, Racial Policing, and the Limits of Law

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    Author
    McMahon, John
    Keyword
    Sociology and Political Science
    Sonia Sotomayor
    legal theory
    Fourth Amendment
    phenomenology
    racism
    policing
    Journal title
    Polity
    Date Published
    2021-10-01
    Publication Volume
    53
    Publication Issue
    4
    Publication Begin page
    718
    Publication End page
    742
    
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    URI
    http://hdl.handle.net/20.500.12648/6962
    Abstract
    Sonia Sotomayor’s dissent in the Fourth Amendment case Utah v. Strieff (2016) received a great deal of media attention, particularly for its citations to prominent Black political thinkers and its evocations of Black Lives Matter. This article interprets Justice Sotomayor’s dissent as constructing an emergent legal theory that incorporates Black Lives Matter and the experiences of people of color subject to being stopped and searched into the core of Fourth Amendment jurisprudence. In contrast to Clarence Thomas’s abstracted majority opinion, I argue Sotomayor contests the meaning of law’s relations to subjects, bringing the feeling, moving, restrained, invaded, prodded, shaped, habitual, racialized subject of the police stop into Supreme Court legal reasoning. In tension with Sotomayor’s phenomenological alternative are structural and institutional constraints on the liberatory possibilities for any Supreme Court dissent, particularly one focused on racial injustice. The article argues for recognizing both the generativity of the emergent legal phenomenology and the constraints on its politics in order to grapple with the potential for legal critique to surface from what Sotomayor calls law’s “cold abstractions.”
    Citation
    McMahon, John. 2021. “Sonia Sotomayor’s Legal Phenomenology, Racial Policing, and the Limits of Law.” Polity 53(4): 718–42. https://www.journals.uchicago.edu/doi/10.1086/716078
    DOI
    10.1086/716078
    ae974a485f413a2113503eed53cd6c53
    10.1086/716078
    Scopus Count
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    Political Science Faculty Work

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