Richard Nixon ran for the presidency in 1968 in part by campaigning against the Warren Court for its criminal law decisions that he said “handcuffed” the police. Nixon appointed a new chief justice, Warren E. Burger, and three associate justices who started the court’s shift to the right that has continued ever since.
Within the past two decades, the court has not merely backed away from adding any new constraints on police. Instead, according to Georgetown law professor Paul Butler, the court under two conservative chief justices William H. Rehnquist and John G. Roberts Jr. has issued decisions that give police “super powers” to arrest, to racially profile, and even to kill.
Butler, an African American who has become a leading critic of racism in the criminal justice system, delivered his critique as keynote speaker at a daylong symposium “Police/State: Race, Power, and Control” sponsored by the Georgetown Law Journal [Nov. 20]. (Disclosure: I was editor in chief of the Journal, volume 69, a few years before the current EIC was born.) Butler provocatively declared that the most important police-related issue today is not illegal police misconduct but actually legal police conduct.
Butler made no mention of the two major Warren Court decisions aimed at regulating police practices: Mapp v. Ohio (1960), the decision that bars use of illegally obtained evidence, and Miranda v. Arizona (1966), the ruling that requires police to inform suspects of their rights before custodial interrogation. He could have detailed the many subsequent decisions that have narrowed the applications of those decisions even while leaving them on the books.
Instead, Butler listed decisions largely unknown to the general public that have given the court’s blessing to questionable police conduct. Butler followed a series of speakers who documented the racial disparities in criminal justice dramatically detailed in Ferguson, Mo., and equally found nationwide. “The court has created a legal platform for black lives not to matter to the police,” Butler said.
On their face, the three decisions in Butler’s list have nothing to do with race. Indeed, a white woman was the unfortunate victim of police overreaching in one of the rulings. In the real-world context, however, Butler argues that police use of their “super powers” inevitably means that black and brown people lose and white people win.
Chronologically, the list begins with a Rehnquist Court decision, Whren v. United States, that upheld the convictions of two African American men following a traffic stop in a “high drug area” in Washington, D.C. The plainclothes vice officers said they stopped the defendants’ truck because it drove away from an intersection at an “unreasonable” speed. The defendants argued that the traffic stop was a pretext and that the officers had singled them out because of their race.
Writing for a unanimous court, Justice Antonin Scalia said the officers’ “subjective intentions” did not matter as long as they had an objective basis for the stop. With racial profiling already being challenged in lower courts, Scalia acknowledged that the Constitution prohibits race-based selective enforcement, but he relegated that issue to the impossible-to-meet standard of intentional discrimination. In operation, the decision makes racial profiling all but impossible for defendants to challenge or for courts to police.
A second Rehnquist Court decision, Atwater v. Lago Vista (2001), widens police power to arrest after routine traffic stops. A police officer in Lago Vista, Texas, stopped Gail Atwater for driving without a seat belt and took her into custody. Atwater argued that the arrest for such a minor offense was an “unreasonable” seizure under the Fourth Amendment. The court disagreed in a 5-4 decision written by Justice David H. Souter. Even though Atwater is white, the impact falls on African Americans and Hispanics given the statistics that show them more likely than whites to be traffic-stopped or arrested once stopped.
In a third case, the Roberts Court in effect gave police a license to kill. The 8-1 decision in Scott v. Harris (2007) rejected a federal civil rights suit by a Georgia man, Victor Harris, who was left permanently paralyzed after police shot him in a high-speed automobile chase. Writing for the court, Scalia found the police conduct reasonable given “the actual and imminent threat” that Harris supposedly posed for the officers, other drivers, or pedestrians. In a lone dissent, Justice John Paul Stevens argued the case should have been allowed to go to a jury.
Just this month, the court issued a summary ruling that makes clear police have no obligation to choose a non-lethal alternative for terminating a high-speed chase. The 8-1 ruling in Mullenix v. Luna [Nov. 9] found a Texas state trooper entitled to qualified immunity for fatally wounding the suspect-driver in misdirected shots aimed at disabling the vehicle. "The Court has [ ] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment,” the unsigned opinion states.
The court is not to blame for other problems highlighted in the symposium. Congress and state legislatures bear responsibility for the mass incarceration that stems from overcriminalization and harsh mandatory minimum sentences; local authorities are to blame for the fines and fees that often land indigents behind bars. But a court that arms police with super powers contributes to the widespread lack of confidence in equal justice under law.