Our courts need to protect our Constitution. But sometimes they just get it plain wrong.
Now Supreme Court Justices Thomas and Alito just sounded the alarm over a huge mistake.
A Precedent The Supreme Court Declined To Stop
The Supreme Court declined Monday to take up U.S. v. Donte J. Carter — a case that Justices Samuel Alito and Clarence Thomas argued in dissent forces law enforcement officers to navigate a constitutionally impermissible race-based guessing game every time they make a stop.
The case originated in Washington, D.C., where a man named Donte Carter was asked by police whether he was carrying a weapon. He said no. Officers noticed an L-shaped bulge in his pants consistent with a firearm, and upon further investigation recovered a .40-caliber pistol that had been stolen from an FBI agent’s vehicle. Carter was convicted of firearm and theft charges.
The D.C. Court of Appeals vacated the convictions. Its reasoning was unusual. The court held that because Black Americans are “especially distrustful of law enforcement” and therefore “less likely” to feel free to walk away from a police encounter, Carter’s interaction with police had effectively become an unlawful seizure before reasonable suspicion was established. His race, in other words, was legally relevant to the Fourth Amendment analysis of whether a reasonable person in his position would have felt free to leave.
Alito and Thomas argued that this is precisely the kind of race-based differential treatment that the Supreme Court’s precedents prohibit — and that the consequences of allowing it to stand are severe.
“Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups?” Alito wrote. “We have said that our ‘Constitution is color-blind.’ It ‘almost never’ allows government actors to treat persons differently based on their race.”
The Legal Argument — And Why It Matters
The core constitutional concern Alito and Thomas are raising goes to the heart of what the Equal Protection Clause is supposed to guarantee. The D.C. Circuit’s reasoning is, on its face, an effort to protect Black defendants from racially biased police conduct — a genuine concern that has a long and documented history in American policing. But the remedy it creates — adjusting Fourth Amendment analysis based on a defendant’s racial group membership — introduces exactly the kind of government race-consciousness that equal protection doctrine has consistently treated as constitutionally suspect.
Alito cited Shaw v. Reno, Students for Fair Admissions v. Harvard, and Louisiana v. Callais to make the point. The Constitution, he wrote, “permits an individual to be treated differently based on a ‘perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike.'” That kind of group-based stereotyping — even sympathetic, even statistically grounded — is not what the Constitution authorizes.
The practical problem is also significant. If courts can adjust Fourth Amendment reasonableness analysis based on race, they need some method for doing so consistently. Does the “less likely to feel free to leave” standard apply differently to lighter-skinned and darker-skinned Black individuals? To mixed-race individuals? To Latinos who may or may not be perceived as Black by the officers involved? The D.C. Circuit’s opinion creates more legal uncertainty than it resolves, and it does so by importing the very race-sorting exercise the Constitution was designed to prohibit.
The Supreme Court’s Silence — And What Comes Next
By declining to take up the case, the Supreme Court’s majority has allowed the D.C. Circuit’s decision to stand — at least for now. Alito and Thomas made clear they believe the precedent is wrong and would have granted certiorari to correct it. Whether a future case presents the question in a form the full court is willing to engage with remains to be seen.
The broader legal landscape adds context worth noting. The same Supreme Court that recently issued the Callais redistricting ruling — limiting the use of race in drawing legislative districts — declined to intervene when a circuit court used race as a factor in Fourth Amendment seizure analysis. The apparent tension between those two postures may itself generate future litigation that eventually forces the high court’s hand.
For now, law enforcement officers in D.C. and potentially across circuits that follow the D.C. ruling are left with a legal environment that Alito described plainly: one that requires them to make race-based assessments of how individuals from different groups experience police encounters. The Constitution, as he and Thomas read it, does not permit that. The majority’s silence leaves the question unresolved.
