Race and the Law Article 137 Harv. L. Rev. 1533

Coloring in the Fourth Amendment

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Introduction

[D]eeming race irrelevant in law does not make it so in life.

Ketanji Onyika Brown Jackson, the first Black woman to serve on the Supreme Court of the United States (2023)1

At the turn of the twentieth century, Justice John Marshall Harlan famously declared in his Plessy v. Ferguson2 dissent that “[o]ur Constitution is color-blind.”3 Of course, Justice Harlan said this in a very particular context. The Supreme Court was deciding whether a law that segregated people by race was constitutional.4 And in one of its anticanonical opinions,5 the Court held that the law was constitutional, so long as the segregated facilities were “separate but equal,”6 a concept farcical on its face.

Fast-forward one hundred years. Plessy would not only be overruled,7 but also Justice Harlan’s now-famous line about the Constitution being “color-blind” would be wrenched from its historical context and used in service of a conservative legal movement.8 “By the 1990s, the U.S. Supreme Court had adopted ‘colorblind conservatism’ as its reigning ideology. In majority opinions for successive cases regarding affirmative action in education and employment, the Court extolled race neutrality as the dominant value in equality jurisprudence.”9

At the same time colorblindness gained steam came a rapid realization of the pervasive racialization of the American criminal legal system, a realization quickened by the War on Crime. Comprehensive data on the racial disparities in policing, prosecution, and punishment started to embed in the wider collective consciousness as visuals of police misconduct simultaneously hit mainstream airwaves.10 This awakening crested in the summer of 2020, when the United States experienced a mass racial reckoning, spurred by a police officer snuffing out the life of an unarmed Black man in the middle of the day for the whole world to see.11

Despite the ascendance of colorblind constitutionalism,12 one area where colorblindness has yet to catch fire, at least through explicit rhetoric, is in the Court’s criminal procedure precedents, including its Fourth Amendment policing jurisprudence and, as relevant here, the free-to-leave13 seizure analysis. Sure, the Court rarely acknowledges the influence of race in its criminal procedure decisions, much to the chagrin of many legal scholars.14 Still, the Court has never explicitly held that race cannot be considered when resolving Fourth Amendment questions. In fact, as this Article explains, the Court has explicitly condoned the consideration of race when it comes to police building suspicion.15

The dueling phenomena — the push for colorblindness and awareness of racialized policing and punishment — are coming to a head in criminal procedure. As courts across the country have pledged to address the racial inequities in the legal system,16 and as scholars and litigators call for the adoption of more race-conscious litigation strategies,17 courts are being asked to answer a question left open by the Supreme Court: Can a Fourth Amendment seizure analysis account for a person’s race?

Courts have answered this question differently. Some courts have willingly considered race when deciding whether a person was free to terminate a police encounter. These courts have taken what can be described as a realist approach.18 They often cite statistics and anecdotes showing the disparate ways in which people of color are policed, and then they assert that this information is relevant to whether a reasonable person of the defendant’s race would feel free to terminate an encounter with a police officer.19

Other courts have held that a person’s race cannot be considered as part of a seizure analysis. These courts borrow from the colorblind constitutionalist playbook. They assert that considering race would be methodologically unsound, practically unworkable, and potentially unconstitutional.20 So far, the Supreme Court has refused to wade into the debate.21

This Article clarifies the role race should play in a Fourth Amendment seizure analysis. It explains that, to the extent one believes that colorblind constitutionalism is a legitimate theory, it is analytically unfit for a Fourth Amendment analysis. In the Fourth Amendment context, the normative foundations of colorblind constitutionalism are more consistent with race being considered as part of the seizure analysis rather than it being outright ignored.

This view is vindicated when one steps back and takes a broader view of the Court’s Fourth Amendment jurisprudence. Modern Fourth Amendment law accounts for race in both overt and coded ways. The Court has explicitly allowed for the consideration of race and ethnicity when policing immigration crimes and when creating criminal profiles.22 A police officer can engage in race-based pretextual stops consistent with the Fourth Amendment.23 An officer can consider the characteristics of a neighborhood, including characteristics that are racially coded, when determining whether they have reasonable suspicion to stop someone.24 And an officer must consider the threat posed by someone when deciding to use force, which also allows for thinly veiled racial considerations.25 The Fourth Amendment as conceived by the Court is hardly race-neutral. Rather, Fourth Amendment doctrines generally incorporate a racial perspective based on the experiences of white people.26

It is illogical to think that under Fourth Amendment law, race can be used to build suspicion under the Fourth Amendment, but the fact that people of different races experience police differently is totally irrelevant. Thus, to bring coherence to Fourth Amendment law, advocates should continue to push courts to consider race when resolving seizure questions, and courts must consider these requests seriously, rather than relying on colorblind talking points that have no logical place in Fourth Amendment jurisprudence. This Article is timely in a world where the Court is actively pressing an aggressive colorblind agenda, including its recent ruling holding Harvard’s and the University of North Carolina’s (UNC) admissions programs unconstitutional.27 It is also timeless in that it is a broader warning to guard against “case law creep,” where doctrines and methodologies are uncritically ported from one context to another, especially given the different interests at stake between civil disputes and criminal prosecutions.28 At its core, this Article is a reminder that it’s important to chart a progressive view of the law even in the face of an unabashedly conservative Supreme Court.29 This Article makes its case over the course of three parts.

Part I catalogues the debate brewing in the lower courts. It provides a descriptive account of how courts that have considered whether race can factor into a Fourth Amendment seizure analysis have reached different outcomes, categorizing the reasons courts have given for why race must be addressed or excluded.

Part II then explains how the reasons courts give for refusing to consider race sound in the register of colorblind constitutionalism. But before it does that, it sets forth the conservative theory of colorblind constitutionalism and lays out its analytical framings.

Finally, Part III argues that, even assuming (a massive assumption) colorblind constitutionalism has merit as a theory in the equal protection context, it has no place in the Fourth Amendment context. Indeed, when one conducts a broader survey of Fourth Amendment law, heeding race makes coherent sense given that Fourth Amendment law already considers race in myriad ways.

Before proceeding, it is important to recognize that there are various forms of colorblindness.30 There is judicial colorblindness, in which judges do not consider race when deciding Fourth Amendment doctrine questions. There is doctrinal colorblindness, in which Fourth Amendment doctrine is constructed in a way that fails/refuses to account for race. And there is operational colorblindness, in which police attempt to avoid racial considerations when performing their functions (for instance, rejecting associations of Blackness with criminality). This Article focuses primarily on judicial colorblindness, where judges refuse to consider race, and it attempts to stave off doctrinal colorblindness, where the Fourth Amendment seizure doctrine is construed in such a way that it is impermissible to consider race. Operational colorblindness is largely beyond the scope of this Article, although as other scholars have noted, police should not be able to consider race (or racial proxies) when building constitutional suspicion.31

Next, a disclaimer. This Article understands that, “from a racial justice perspective, the Roberts Court’s jurisprudence is ghastly.”32 This disclaimer may cause you to scratch your head and ask, “What’s the point?” First, should the Court hold that a Fourth Amendment seizure analysis cannot account for race based on an extension of its colorblind heuristic, this Article will reveal how doctrinally dishonest such a ruling would be. Second, and just as importantly, this Article thinks beyond the Supreme Court to the state and lower federal courts that will need to grapple with this and similar questions in the near future. And third, this Article strikes a cautionary note, warning courts, scholars, and advocates to interrogate the logics of legal theories before uncritically extending them. But it also strikes a positive note, envisioning a version of the law that is bold enough to view everyone as their full selves, race and all.33

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* Professor of Clinical Law, New York University School of Law.  Thanks to Rachel Barkow, Adam Davidson, Brandon Hasbrouck, Alexis Hoag-Fordjour, Peter Joy, Pauline Kim, Jamelia Morgan, Daniel McConkie, Alexandra Natapoff, David Sklansky, Carol Steiker, India Thusi, and Kate Weisburd for their insightful feedback on earlier drafts.  I am also grateful to my Washington University colleagues for encouraging me to write the Article and providing me with helpful questions regarding its framing.  A special thank you to the editors of the Harvard Law Review for their incredible work bringing this piece to print.  Mistakes are my own.

Footnotes

  1. ^ Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2277 (2023) (Jackson, J., dissenting).

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  2. ^ 163 U.S. 537 (1896).

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  3. ^ Id. at 559 (Harlan, J., dissenting). What exactly Justice Harlan meant by this declaration “remains a matter of bitter contestation; indeed, much of the controversy surrounding his dissent sources from the many different (and incompatible) interpretations of those fateful words.” Phillip Hutchison, The Harlan Renaissance: Colorblindness and White Domination in Justice John Marshall Harlan’s Dissent in Plessy v. Ferguson, 19 J. Afr. Am. Stud. 426, 427 (2015). Some argue that Justice Harlan’s dissent was really motivated by his view of white racial superiority. See, e.g., Jamelle Bouie, Opinion, No One Can Stop Talking About Justice John Marshall Harlan, N.Y. Times (July 7, 2023), https://www.nytimes.com/2023/07/07/opinion/harlan-thomas-roberts-affirmative-action.html [https://perma.cc/7BPE-L8UB]. That aspect of Justice Harlan’s legacy is beyond the scope of this Article.

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  4. ^ Plessy, 163 U.S. at 540.

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  5. ^ See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011).

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  6. ^ Plessy, 163 U.S. at 552 (Harlan, J., dissenting); see id. at 551 (majority opinion).

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  7. ^ See Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954).

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  8. ^ See T. Alexander Aleinikoff, Re-reading Justice Harlan’s Dissent in Plessy v. Ferguson: Freedom, Antiracism, and Citizenship, 1992 U. Ill. L. Rev. 961, 961.

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  9. ^ Ariela Gross, A Grassroots History of Colorblind Conservative Constitutionalism, 44 Law & Soc. Inquiry 58, 58–59 (2019) (footnote omitted).

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  10. ^ By the late 1990s and early 2000s, terms such as the “prison industrial complex,” “carceral state,” and “mass imprisonment” were in relatively common use. See Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System, 73 Soc. Rsch. 445, 447, 456 (2006); Felicia Angeja Viator, Opinion, Video of the Police Assault of Rodney King Shocked Us. But What Did It Change?, Wash. Post (Mar. 3, 2021, 6:00 AM), https://www.washingtonpost.com/outlook/2021/03/03/video-police-assault-rodney-king-shocked-us-what-did-it-change/ [https://perma.cc/E5E2-7NQQ] (describing the public outcry after the release of the Rodney King video).

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  11. ^ See, e.g., Jelani Cobb, An American Spring of Reckoning, New Yorker (June 14, 2020), https://www.newyorker.com/magazine/2020/06/22/an-american-spring-of-reckoning [https://perma.cc/E4L9-55X8]; Ibram X. Kendi, Is This the Beginning of the End of American Racism?, The Atlantic (Sept. 2020), https://www.theatlantic.com/magazine/archive/2020/09/the-end-of-denial/614194/ [https://perma.cc/9NFT-2U6S].

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  12. ^ As explained in more detail in Part II, colorblind constitutionalism is the philosophy that “the Constitution protects individuals, not groups, and so bars all racial classifications, except as a remedy for specific wrongdoing.” Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. 1278, 1281 (2011).

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  13. ^ See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.) (“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (footnote omitted)).

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  14. ^ See, e.g., Daniel S. Harawa, Whitewashing the Fourth Amendment, 111 Geo. L.J. 923, 937 (2023); I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 12 (2011); Paul Butler, The White Fourth Amendment, 43 Tex. Tech L. Rev. 245, 246–47 (2010); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 969 (2002); Tracey Maclin, “Black and Blue Encounters” — Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 248 (1991).

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  15. ^ See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 886–87 (1975) (calling Mexican ancestry a “relevant factor” in the suspicion analysis).

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  16. ^ See Daniel S. Harawa, The False Promise of Peña-Rodriguez, 109 Calif. L. Rev. 2121, 2159 & n.249 (2021) (noting the phenomenon of state supreme courts vowing to address racial injustice in the summer of 2020).

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  17. ^ See, e.g., Harawa, supra note 14, at 964; Robin Walker Sterling, Defense Attorney Resistance, 99 Iowa L. Rev. 2245, 2264–71 (2014); Anthony V. Alfieri, Lynching Ethics: Toward a Theory of Racialized Defenses, 95 Mich. L. Rev. 1063, 1103–04 (1997); Jonathan A. Rapping, Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, 16 N.Y.U. J. Legis. & Pub. Pol’y 999, 1018 (2013); see also About Us, Black Pub. Def. Ass’n, http://blackdefender.org/about-us/ [https://perma.cc/4KB4-JQUB].

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  18. ^ I use “realism” here “in its everyday sense — not in the sense that it bears in discussions of the school of legal thought known as ‘legal realism.’” Richard A. Posner, The Supreme Court, 2004 Term — Foreword: A Political Court, 119 Harv. L. Rev. 32, 32 n.2 (2005).

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  19. ^ See infra section I.B, pp. 1544–48.

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  20. ^ See infra section I.A, pp. 1542–44.

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  21. ^ See Petition for a Writ of Certiorari at i, Knights v. United States, 142 S. Ct. 709 (2021) (mem.) (No. 21-198) (asking, as the first question presented, “[w]hether a court analyzing if a Fourth Amendment seizure has occurred is categorically barred from considering a person’s race”); Knights, 142 S. Ct. at 709 (order denying certiorari).

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  22. ^ See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 887 (1975).

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  23. ^ Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 649–50 (2021) (describing how the Court’s holding that pretextual stops do not violate the Fourth Amendment has led to racial profiling); Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States, 83 Geo. Wash. L. Rev. 882, 884 (2015) (explaining that the Supreme Court’s Fourth Amendment jurisprudence is “notorious for its effective legitimation of racial profiling in the United States”).

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  24. ^ See, e.g., Lincoln Quillian & Devah Pager, Black Neighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations of Neighborhood Crime, 107 Am. J. Socio. 717, 717 (2001) (explaining that racial stereotypes influence perceptions of neighborhood crime levels); Ben Grunwald & Jeffrey Fagan, The End of Intuition-Based High-Crime Areas, 107 Calif. L. Rev. 345, 345 (2019) (same).

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  25. ^ See, e.g., Frank Rudy Cooper, Intersectionality, Police Excessive Force, and Class, 89 Geo. Wash. L. Rev. 1452, 1473–75 (2021) (describing the racial critiques of the Court’s excessive force jurisprudence); see also Graham v. Connor, 490 U.S. 386, 396 (1989).

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  26. ^ Cf. Carbado, supra note 14, at 968 (“[T]he Court conceptualizes race primarily through the racial lens of colorblindness. In this sense, the race and Fourth Amendment problem is not just a function of the fact that the Court ignores race. It is also, and perhaps more fundamentally, a function of the Court’s underlying investment in a particular conception of race: race neutrality or colorblindness.” (footnotes omitted)); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1379–80 (1988) (discussing the false presumption of race neutrality); Alexis Hoag-Fordjour, White is Right: The Racial Construction of Effective Assistance of Counsel, 98 N.Y.U. L. Rev. 770, 783–84 (2023) (“[I]t is easy to believe that the law’s norms and starting points are neutral and not racialized. Yet, our social and legal reality reveals otherwise.” Id. at 784.).

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  27. ^ Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2175 (2023).

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  28. ^ Professor David Sklansky made a similar, inverted argument, when discussing equal protection challenges to the crack-cocaine sentencing disparities. Sklansky argued that courts rigidly applied existing equal protection doctrine to race-based challenges to the crack-cocaine disparity, and that by insisting on simplistic reasoning, courts avoided important issues of racial injustice. David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1284 (1995). Thus, the related lesson from Sklansky is that courts should not woodenly apply doctrine in a “universalist” way that works to blind the courts from injustice. Id.

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  29. ^ Erwin Chemerinsky, We the People: A Progressive Reading of the Constitution for the Twenty-First Century 233 (2018) (“Progressives cannot give up on the Constitution or constitutional law. We must criticize . . . the harmful decisions of the Supreme Court. We must develop and defend an alternative vision.”); Khiara M. Bridges, The Supreme Court, 2021 Term — Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 131 (2022) (describing the Court’s “current iteration as the most conservative Supreme Court since the Lochner era”).

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  30. ^ Many thanks to David Sklansky for crystallizing this point for me and for helping to define these categories. Also, perhaps racial considerations should factor into other seizure questions, for example, whether a seizure is reasonable. This Article does not answer this question, although I hope to explore it in future work.

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  31. ^ See infra notes 287 and 290.

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  32. ^ Bridges, supra note 29, at 31.

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  33. ^ See Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87, 107 (2022) (“Our Constitution contains tools sufficient to accomplish a sweeping, antiracist reimagining of the law but requires a Court that believes in that possibility.”); Dorothy E. Roberts, The Supreme Court, 2018 Term — Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 122 (2019) (urging us to “demand[] that the Reconstruction Constitution live up to the liberation ideals fought for by abolitionists, revolutionaries, and generations of ordinary black people”); Daniel S. Harawa, Lemonade: A Racial Justice Reframing of the Roberts Court’s Criminal Jurisprudence, 110 Calif. L. Rev. 681, 739 (2022) (“[U]rging a reimagination of . . . what good can be done with the case law from a Court that is hostile to racial justice.”).

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