Professor L. Song Richardson
83 Geo. Wash. L. Rev.1008
In their Article, Reasonable but Unconstitutional: Racial Profiling and
the Radical Objectivity of Whren v. United States, Professor Chin and Mr.
Vernon not only provide a withering critique of the U.S. Supreme Court’s
unanimous decision in Whren v. United States but they also present novel
doctrinal arguments for reversing its problematic dicta that racial discrimination
is constitutionally reasonable. Their arguments are compelling and require
no extension of current doctrine. For instance, Chin and Vernon
embrace Whren’s endorsement of pretextual traffic stops as long as those
stops do not involve racial profiling. Additionally, the authors implicitly embrace
a central premise of the Court’s current race jurisprudence, which is that
only conscious racism violates the Constitution. Thus, their framework allows
the Court to reach the identical outcome in Whren, without sanctioning racebased
policing. This Response argues, however, that there are some disadvantages
to relying upon the Court’s existing jurisprudence when questions of race
are concerned. First, their defense of pretextual policing is troubling because
the practice likely will exacerbate the racial burdens that non-Whites experience
at the hands of the police, even if conscious racial bias is nonexistent.
Furthermore, focusing solely on officers’ subjective racial motivations to determine
whether discrimination has occurred ignores the victims’ experiences
of profiling. In sum, the Court’s current conception of race discrimination is
anemic and in urgent need of reform. Chin’s and Vernon’s arguments increase
the likelihood that the Court will condemn racial discrimination as unreasonable
under the Fourth Amendment. This would mark an important
first step towards moving the Court to adopt a more realistic and broader
conception of the harms of race discrimination.
