The Supreme Court’s emperor has no clothes, and it takes a late-night comedian to point it out.
Sitting across from Stephen Colbert last night, Justice Sonia Sotomayor performed one of the more tragic rituals of America’s constitutional law experiment. Asked about this week’s decision in Noem v. Perdomo, Sotomayor navigated a tricky path between standing by her powerful dissent while playing respectful toward a majority that has earned only contempt.
Colbert responded, explaining, to paraphrase from a different Stephen Colbert role, that this just sounds like racial profiling with extra steps. Like an anger translator, he went where Sotomayor couldn’t, calling out the practicalities of this decision and providing a dose of genuine common sense to counter Justice Gropey McKegger’s concurrence where he described racial profiling as “common sense.”
To a lawyer, Sotomayor’s dissent conveyed the horror of watching the majority stitch together a constitutional fraud from duct tape and white panic. It concludes with “I dissent.” Normal people wouldn’t bat an eye, but any dissent that leaves out the customary “respectfully” slaps the lawyerly reader like Will Smith at the Oscars. Within the genteel confines of the Supreme Court, that’s a scorching burn. Outside of it, however, it passes without much notice.
On Colbert’s couch, Sotomayor offered more polite disagreement, taking care to remind viewers that technically the majority didn’t authorize racial profiling because they included “low-wage employment” along with just vaguely looking Latino and speaking Spanish. Sotomayor noted that she personally didn’t think this “adds much to the equation,” but she felt obliged to correct Colbert’s description of the case as limited to how the person looks and talks.
In response, Colbert did what savvy non-lawyers are supposed to do in the face of lawyerly talk’s inherent gaslighting: he called bullshit. Recognizing that the specifics of this case included this “low-wage” prong, but that the “upshot” of the decision is that law enforcement, going forward, can pick any number of flimsy fig leaves to throw into the racial profiling stew, and feel confident that the Supreme Court will have their back. Gorsuch recently ranted in a concurrence that lower court judges should treat these unsigned, unexplained shadow docket rulings as binding vibes. Even though these emergency petitions are meant as to provide temporary, stop-gap, case-specific relief until the full dispute can work its way though the courts, the conservative wing of the Court has seized on it as a fast track to jettison precedent they don’t like. If you’re a district court judge — given Gorsuch’s commentary — the message is pretty clear that the Supreme Court expects future excuses to be rubberstamped below.
Nothing in the majority’s fact pattern prevents this logic from metastasizing into blanket permission for cruising cities with the card from the Family Guy meme.
And, for what’s worth, Colbert made a point of the fact that the supposedly “fair” addendum to the majority’s defense boils down to “poor people presumptively have fewer rights.”
But, despite what Gorsuch said, the law isn’t supposed to work this way, and Sotomayor engages in this topic as if the law still worked the way they taught us in school. She disagrees that “low-wage” changes the nature of the claim, but responds as though this decision ends there. Colbert is the one forced to connect the dots.
The problem with relying on our comedians to traverse the fantasy is that they’re too easily dismissed. The cynical will shrug off Colbert as a clown who “doesn’t understand how the law works.” Anyone posting this exchange and praising Colbert’s straightforward take will be mocked, perhaps eliciting a snide, “even Sotomayor doesn’t agree with him!” And while they’ll cast him as a joker, they clearly know the impact of a candid translation. That’s why CBS worked out a merger approval with the Trump administration that conveniently coincided with canceling Colbert and turning CBS News over to a right-wing grifter. If the emperor has no clothes, make sure the networks are fully stocked with people willing to say “clothes are woke.”
Sotomayor might not be able to tell the public directly what’s going on. If America comes out the other side of this, it’s going to need institutional faith in the courts, and she’s trying to keep that Tinkerbell from dying on stage. She’s got a different role. She’s writing the scathing — pointedly not “respectfully” issued — dissents for lawyers to consume. But lawyers, academics, and the broader legal intelligentsia need to take a hard look at what we’re doing with those dissents. Sotomayor is primarily a baseball fan, but to borrow from other, much more interesting sports, she’s doing her part and everyone else needs to step up to give her an assist.
The Court is signing off on shadow docket orders bulldozing constitutional rights with the same enthusiasm Donald Trump reserves for birthday cards to pedophiles and somehow that needs to break through the attorney water cooler to the public at large. Law review articles that revel in the technicalities and nuances ain’t getting the job done. No one reads those outside of the faculty lounge (and they’re probably not reading them in the faculty lounge either).
So, yes, Stephen Colbert is right. He shouldn’t have to be the one to say it. But until lawyers stop mistaking cocktail party cleverness for public clarity, the task of shouting “this is racist” will fall to comedians.
Until they go off the air anyway. And then who remains to translate the stakes to the public? Okay, John Oliver, but then who?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Justice Sotomayor Lets Stephen Colbert Say What She Can’t appeared first on Above the Law.
The Supreme Court’s emperor has no clothes, and it takes a late-night comedian to point it out.
Sitting across from Stephen Colbert last night, Justice Sonia Sotomayor performed one of the more tragic rituals of America’s constitutional law experiment. Asked about this week’s decision in Noem v. Perdomo, Sotomayor navigated a tricky path between standing by her powerful dissent while playing respectful toward a majority that has earned only contempt.
Colbert responded, explaining, to paraphrase from a different Stephen Colbert role, that this just sounds like racial profiling with extra steps. Like an anger translator, he went where Sotomayor couldn’t, calling out the practicalities of this decision and providing a dose of genuine common sense to counter Justice Gropey McKegger’s concurrence where he described racial profiling as “common sense.”
To a lawyer, Sotomayor’s dissent conveyed the horror of watching the majority stitch together a constitutional fraud from duct tape and white panic. It concludes with “I dissent.” Normal people wouldn’t bat an eye, but any dissent that leaves out the customary “respectfully” slaps the lawyerly reader like Will Smith at the Oscars. Within the genteel confines of the Supreme Court, that’s a scorching burn. Outside of it, however, it passes without much notice.
On Colbert’s couch, Sotomayor offered more polite disagreement, taking care to remind viewers that technically the majority didn’t authorize racial profiling because they included “low-wage employment” along with just vaguely looking Latino and speaking Spanish. Sotomayor noted that she personally didn’t think this “adds much to the equation,” but she felt obliged to correct Colbert’s description of the case as limited to how the person looks and talks.
In response, Colbert did what savvy non-lawyers are supposed to do in the face of lawyerly talk’s inherent gaslighting: he called bullshit. Recognizing that the specifics of this case included this “low-wage” prong, but that the “upshot” of the decision is that law enforcement, going forward, can pick any number of flimsy fig leaves to throw into the racial profiling stew, and feel confident that the Supreme Court will have their back. Gorsuch recently ranted in a concurrence that lower court judges should treat these unsigned, unexplained shadow docket rulings as binding vibes. Even though these emergency petitions are meant as to provide temporary, stop-gap, case-specific relief until the full dispute can work its way though the courts, the conservative wing of the Court has seized on it as a fast track to jettison precedent they don’t like. If you’re a district court judge — given Gorsuch’s commentary — the message is pretty clear that the Supreme Court expects future excuses to be rubberstamped below.
Nothing in the majority’s fact pattern prevents this logic from metastasizing into blanket permission for cruising cities with the card from the Family Guy meme.
And, for what’s worth, Colbert made a point of the fact that the supposedly “fair” addendum to the majority’s defense boils down to “poor people presumptively have fewer rights.”
But, despite what Gorsuch said, the law isn’t supposed to work this way, and Sotomayor engages in this topic as if the law still worked the way they taught us in school. She disagrees that “low-wage” changes the nature of the claim, but responds as though this decision ends there. Colbert is the one forced to connect the dots.
The problem with relying on our comedians to traverse the fantasy is that they’re too easily dismissed. The cynical will shrug off Colbert as a clown who “doesn’t understand how the law works.” Anyone posting this exchange and praising Colbert’s straightforward take will be mocked, perhaps eliciting a snide, “even Sotomayor doesn’t agree with him!” And while they’ll cast him as a joker, they clearly know the impact of a candid translation. That’s why CBS worked out a merger approval with the Trump administration that conveniently coincided with canceling Colbert and turning CBS News over to a right-wing grifter. If the emperor has no clothes, make sure the networks are fully stocked with people willing to say “clothes are woke.”
Sotomayor might not be able to tell the public directly what’s going on. If America comes out the other side of this, it’s going to need institutional faith in the courts, and she’s trying to keep that Tinkerbell from dying on stage. She’s got a different role. She’s writing the scathing — pointedly not “respectfully” issued — dissents for lawyers to consume. But lawyers, academics, and the broader legal intelligentsia need to take a hard look at what we’re doing with those dissents. Sotomayor is primarily a baseball fan, but to borrow from other, much more interesting sports, she’s doing her part and everyone else needs to step up to give her an assist.
The Court is signing off on shadow docket orders bulldozing constitutional rights with the same enthusiasm Donald Trump reserves for birthday cards to pedophiles and somehow that needs to break through the attorney water cooler to the public at large. Law review articles that revel in the technicalities and nuances ain’t getting the job done. No one reads those outside of the faculty lounge (and they’re probably not reading them in the faculty lounge either).
So, yes, Stephen Colbert is right. He shouldn’t have to be the one to say it. But until lawyers stop mistaking cocktail party cleverness for public clarity, the task of shouting “this is racist” will fall to comedians.
Until they go off the air anyway. And then who remains to translate the stakes to the public? Okay, John Oliver, but then who?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Justice Sotomayor Lets Stephen Colbert Say What She Can’t appeared first on Above the Law.
