If the justices of the U.S. Supreme Court deny cert in a particular case, it doesn’t mean they liked the behavior of the winning party in the proceeding below.

Justice Sonia M. Sotomayor made that clear in an opinion accompanying a cert denial Monday in the case Calhoun v. U.S. That case involves a remark made by a federal prosecutor while questioning the defendant: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

While not disagreeing with the Court’s decision not to grant the defendant certiorari on his claim that the racially charged question violated his constitutional rights, Sotomayor made clear what she thought of the prosecutor’s questioning, which she said “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

The question “was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason,” Sotomayor said. “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century.”

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