On August 12, 2013, United States District Court Judge Shira A. Scheindlin ruled against the City of New York in the case Floyd, et al. v. City of New York, et al. The case was a class action lawsuit filed against the City of New York, the New York City Police Department, former mayor Michael Bloomberg, and police commissioner Ray Kelly, and others. The suit is challenged the city’s highly controversial stop-and-frisk policy on the grounds that it violated the Fourth and Fourteenth Amendments to the US Constitution and Title VI of the Civil Rights Act of 1964. Plaintiffs alleged that the policy resulted in unconstitutional and discriminatory stops and frisks made on the basis of race.
The 198 page opinion published by Judge Scheindlin found that the NYPD was liable for a pattern of practice of racial profiling. Judge Scheindlin wrote: “In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks…In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.” 
However, what is most interesting about the case is the order published by the US Court of Appeals for the 2nd Circuit on October 31, 2013 which stayed Judge Scheindlin’s August orders and remanded the case to a different district court judge. The order stated that the appearance of impartiality in the case was compromised by Judge Scheindlin’s series of interviews and public statements. The appeal of this order is to be filed and argued in early 2014.
As of now, the city’s stop-and-frisk policy looks to be out the door soon. Newly elected mayor Bill de Blasio has a long-standing promise to reform New York’s stop-and-frisk policy. While it seems as if the election has brought the debate at hand to a standstill, this entire situation speaks to a question that has long been debated in the field of law: How far does judicial power go?
Were Judge Scheindlin’s orders a form of “legislating from the bench”?
Conservative views of the judiciary’s role in society cite a growing power of the judicial branch that must be curtailed. In the recent Supreme Court case Windsor v. United States, Justice Alito puts it best saying: “The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned.” 
He notes that the judiciary must be neutral when it comes to the state of politics or popular opinion, but that “neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution.” He essentially advances the argument that all major social change must occur through the democratic process.
On the other hand, while even the most stringent of liberals would agree that the judiciary should be a separate branch from the legislature, the idea that it should play no role at all in “political issues” seems rather outrageous. This is particularly true if the case involves perceived violations of the Constitution. The stop-and-frisk lawsuit was concerned with racial discrimination, an issue with which courts have long been involved. While the stop-and-frisk policy cannot be said to serve no legitimate city interest beyond racial discrimination, the statistics and consequences of the policy are perhaps too damning for that interest to outweigh the harm.
In 52% of the NYPD’s stops from 2004 to 2012, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white. 6% of all stops resulted in an arrest. 
The statistics suggest a strong and uncomfortable case of racial profiling, one that cannot so easily be justified under the city’s interest to protect its citizens. Surely there can be better constructed laws to achieve such a goal. But whose job is it to remedy the situation? The new mayor through the democratic process or the court system of New York?
While there is no agreement on the extent to which the court should play a role in affecting social change, no branch of government can be entirely separated from social policy. At this point in our country’s history, who is to say that there should be so thick a wall between the legislature and judiciary?
 Floyd, et al. v. City of New York, et al.< http://s3.documentcloud.org/documents/750446/stop-and-frisk-memoranda.pdf>
 Windsor v. United States <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>
 Floyd, et al. v. City of New York.
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