Rewriting Whren v. United States


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 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.

About the Author

Devon W. Carbado is the Harry Pregerson Professor of Law at the University of California, Los Angeles School of Law. Jonathan Feingold is an Associate Professor at Boston University School of Law. Professor Feingold received his B.A. from Vassar College and J.D. from UCLA School of Law.