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,
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Follow
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if
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Joe
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Managing
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