Kevin R. Johnson

excerpted from: Kevin R. Johnson, on the Appointment of a Latina/o to the Supreme Court, 5 Harvard Latino Law Review 1 (Spring, 2002)

As Thurgood Marshall's appointment did for African Americans, the addition of the first Latina/o to the Supreme Court could have significant impacts for the greater Latina/o community, as well as to the Court and the nation as a whole. Importantly, a Latina/o would likely bring new and different experiences and perspectives to the Supreme Court and its decision-making process. A review of one decision helps demonstrate this point.

In United States v. Brignoni-Ponce, the Supreme Court stated that Border Patrol officers on roving patrols could consider the race of the occupant of an automobile in making an immigration stop. In the Court's words, "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in the decision to stop a vehicle. Through this pronouncement, the Court ruled that what amounted to race profiling in immigration enforcement was constitutional. The Court authorized the Border Patrol to rely on "Mexican appearance" even if no individual, much less one who "appears Mexican," has been specifically identified as having violated the immigration laws. Such reliance is premised on the perceived statistical probability that persons of "Mexican appearance" are undocumented immigrants. Ordinary Fourth Amendment and Equal Protection principles, however, generally prohibit use of race in this way by lawenforcement. Rather, the Constitution usually requires individualized suspicion, not raw statistical probabilities, to justify a police stop.

A Latina/o Justice might well approach the reliance on race and physical appearance in immigration stops in a wholly different way than the Supreme Court did in Brignoni-Ponce. Latina/os are likely to appreciate the detrimental consequences of race profiling in immigration enforcement, which subjects innocent persons lawfully in the country to stops and interrogations largely because of their physical appearance. As a direct result of the Supreme Court's endorsement of reliance on "Mexican appearance," immigration enforcement regularly burdens Latina/o citizens and lawful immigrants of many different national origin ancestries. Such indignities seriously undermine the sense of belonging of Latina/os to U.S. society.

Moreover, a Latina/o would more likely understand why "Mexican appearance" is a deeply flawed criterion on which to base an immigration stop. He or she might well ask logical questions about Brignoni-Ponce including but not limited to the following:

What is "Mexican appearance?" Physical appearances among Latina/os run the gamut from light to dark skin, black to blond hair, brown to blue eyes. The Border Patrol, however, apparently relies on stereotypical "Mexican appearance," dark skin, black hair, brown eyes, indigenous features, often with a socioeconomic class overlay, when in fact persons of Mexican ancestry possess many different physical appearances.

Should the Border Patrol be afforded the broad discretion to question one's citizenship governed by "standards" such as "Mexican appearance?" Because "Mexican appearance" is vague and based on gross stereotypes of undocumented immigrants, how could Border Patrol officers, even ones acting in good faith, be expected to objectively apply this "standard?"

Aren't most of the people in the United States with a stereotypical "Mexican" or "Hispanic" appearance lawfully in the country? Although the vast majority (ninety percent or more) of the Latina/os in the United States are citizens and lawful immigrants, they may be subject to stops, particularly in the border region if not the entire Southwest, because of nothing other than their physical appearance and a Border Patrol officer's hunch that he or she is undocumented.

Doesn't allowing the Border Patrol to consider "Mexican appearance" in making an immigration stop stigmatize citizens and lawful residents of Latina/o descent who fit the stereotype? Doesn't this limit their claim to full membership in the national community?

Because of personal experiences, as well as an appreciation of the diversities of the Latina/o community in the United States, a Latina/o is more likely than an Anglo to be troubled by the reasoning of Brignoni-Ponce. Moreover, she or he may well have personal experience with race profiling in immigration enforcement. For example, the Border Patrol on numerous occasions has stopped Federal District Court Judge Filemon Vela, as well as other Latina/o judges in South Texas, for questioning about his immigration status. Border Patrol officers once told Judge Vela that he was stopped because he had too many passengers in his new sports utility vehicle; another time, he was informed that the tinted windows on his automobile--quite common in warm climates--led to the decision to stop him. Similarly, the Border Patrol repeatedly pulled over Eddie Cortez, former mayor of a Los Angeles suburb, well over a hundred miles from the border.

Nor is the assumption that Latina/os are immigrants limited to the Southwest. A U.S. Capitol police officer stopped Luis Gutierrez, a member of the U.S. Congress of Puerto Rican ancestry, on the way to his congressional office and flippantly told Gutierrez that he "'and [his] people should go back to the country [they] came from."' Such experiences, analogous to those of Thurgood Marshall with respect to racial discrimination, almost inevitably would shape one's thinking about immigration enforcement and, more generally, the reliance on alleged group propensities in law enforcement.

Based on personal experience, a Latina/o Justice is likely to understand the fallacy of "Mexican appearance" and appreciate that Latina/os come in all shapes, sizes, and appearances, not just the stereotypical ones. Latina/os also generally know that many non-Latina/o U.S. citizens assume that Latina/os-- native born in this country or not--are "foreigners," and treat them as outsiders to the national community. This assumption, as seen in Brignoni-Ponce, may affect analysis of immigration and immigration enforcement issues deeply impacting Latina/os.

Importantly, a Latina/o on the Supreme Court might well bring a unique perspective to bear on the analysis of substantive bodies of law in which issues of race arise more subtly than in immigration law. Although facially neutral, and therefore presumably lawful, English-only laws can be employed to attack Latina/os or, at a minimum, adversely affect the Latina/o community. For example, in Hernandez v. New York, the Court held that a prosecutor could constitutionally use peremptory challenges to strike Spanish-speaking jurors in a criminal case that required the translation of Spanish into English; with all Spanish-speakers excluded, a Latina/o defendant was denied a jury that included any Latina/os.

A Latina/o also might look differently than others at various civil rights issues, including those implicated by criminal law enforcement. The recent growth of Latina/o civil rights scholarship demonstrates that Latina/os have civil rights concerns different and apart from those of other racial minorities. For this reason, it should not be surprising that the experiences of Latina/os on the state and federal bench arguably have influenced their legal analysis.

In essence, the Supreme Court has lacked a Latina/o voice and perspective. To this point, for example, no Supreme Court Justice has emphasized for Latina/os, as Justice Marshall consistently did for African Americans, the long history of segregation and discrimination against Mexican Americans in the Southwest or the racism directed at Puerto Ricans on and off the island. Such deficiencies are more likely to be remedied by a Latina/o Justice than one of any other background.

Moreover, perhaps most importantly, the appointment of a Latina/o to the Supreme Court would signal a movement toward full membership for Latina/os in American social life, just as Thurgood Marshall's appointment signaled for African Americans. The naming of a Latina/o Justice in and of itself would symbolize the growing inclusion of Latina/os in the respectable mainstream, rather than simply the entertainment industry. Such a development would be particularly important to Mexican Americans and Puerto Ricans, two Latina/o national origin sub-groups that historically have been denied access to the highest echelons of U.S. society.

Unfortunately, messages of Latina/o exclusion in the legal profession run rampant. Few Latina/os can be found on the state and federal bench. Only a handful have served as a law clerk to a Supreme Court Justice, a prestigious credential held by many of the nation's leading attorneys and judges. Severely under-represented in elite corporate law firms, Latina/os comprise only about 140 of all law professors in the United States. The traditional paths to the Court thus have been unavailable to Latina/os. The first Latina/o Justice could not help but to encourage the fuller integration of the legal profession and send a powerful message that Latina/os in fact must be treated as full members of U.S. society.

In this vein, appointment of a Latina/o to the Supreme Court would go far to make "visible" the relatively "invisible" Latina/o community in the United States. Public attention to the nomination itself would direct attention to the growing Latina/o national presence. The questioning of a Latina/o nominee by Senators in confirmation hearings would likely highlight Latina/o civil rights concerns. Such a high visibility platform might well have a lasting impact on the national consciousness.