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

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.”