| Abstract |
Professor Derrick Bell stated, “At its essence, the willingness to protest represents less a response to a perceived affront than the acting out of a state of mind.” This piece honors Professor Bell, his protest, and the state of mind he embodied: confronting authority. It seeks to embolden the everyday, persevering practitioner or judge who is troubled by racist Supreme Court precedent, such as Whren v. United States. For nearly three decades, practitioners and judges have dutifully applied Whren to even the most obviously harmful pretextual traffic stop. The Whren Court licensed the racial profiling and over-policing of countless Black and Brown people. What Justice Scalia described as the “run-of-the-mine” traffic stop predictably progressed into a colonizing and abusive police practice that is “unusually harmful” to Black and Brown people’s Fourth Amendment interests.When the Whren Court condoned the pretextual traffic stop of two African American men in 1996, it enabled the seizing and killing of Black and Brown people well into our twenty-first century. It also sanctioned arbitrary police invasion of the privacy and security interests of countless Black and Brown people. Justice Scalia’s “run-of-the-mine” traffic stop has become, at worst, a death trap and, at best, a demoralizing form of social control. For those practitioners and judges ready to confront Whren, there is a way without overruling it, risking accusations of “anarchy.” The language of Whren, social facts and developments, adjacent case law, and the roots of our Fourth Amendment support a vertical “narrowing” of this authority. Conceived by Professor Richard M. Re, this “narrowing from below” occurs when lower courts interpret a higher court precedent more narrowly than its best reading, adopting a reasonable alternative (albeit not the conventional) interpretation of the precedent. Narrowing is not overruling and even the strictest model of vertical stare decisis supports its legitimacy. The Supreme Court itself narrows its own precedent and, significantly, has blessed the vertical narrowing of its precedent by lower courts. Whren is ripe for vertical narrowing where Justice Scalia juxtaposes the “run-of-the-mine” traffic stop with the seizure “unusually harmful” to the people’s privacy and physical interests. Although the Whren Court may not have contemplated the pretextual traffic stop as “unusually harmful” in 1996, we know far better today. Practitioners and judges can and should seek to vertically narrow Whren. |
