Rewriting Whren v. United States

Abstract

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that the Court’s hands were tied.

This Article argues otherwise by offering an alternative Supreme Court opinion that could have decided the case. In the context of doing so, the Article limits its archive—the materials on which it formally relies—to sources that were available to the Court when the case was litigated. We do not pretend that this citational practice fully avoids the pitfalls of presentism. To be perfectly transparent, how we view Whren is very much informed by the broad literature that has emerged over the past two decades arguing that the case was wrongly decided. Still, that we have limited our archive along the preceding lines strengthens the case that the Court could have reached a different conclusion—within the confines of Fourth Amendment law—that took the dignity and sanctity of Black lives more seriously. We have written the opinion in the voice of the late Justice Thurgood Marshall, whose constitutional jurisprudence routinely centered the experiences of the marginalized, the minoritized, and the forgotten.