Whitewashing the Fourth Amendment

Abstract

A conventional critical race critique of the Supreme Court and its Fourth Amendment jurisprudence is that it erases race. Scholars argue that by erasing race, the Court has crafted doctrine that is oblivious to people of color’s lived experiences with policing in America.

This Article complicates this critique by asking whether it is solely the Court that is doing the erasing. It explores how race was—or more accurately, was not—litigated in seminal Fourth Amendment cases scholars have targeted for attack: Florida v. Bostick, Illinois v. Wardlow, and United States v. Drayton. As the Article shows, race was not raised, let alone litigated, in these important Fourth Amendment cases, even though the defendants in all three cases were Black.

This Article therefore rounds out the racial critiques of the Court and its Fourth Amendment jurisprudence. Rather than solely blame the Supreme Court, maybe we should hold attorneys partially responsible for the erasure of race. Perhaps by not raising race, the profession has given the Court license to ignore race in its Fourth Amendment case law.

This Article underscores the need to reevaluate how we as a profession choose to address or ignore race. It proves that the profession more broadly is complicit in the whitewashing of the Fourth Amendment. And importantly, the insights of this Article extend beyond criminal law and even beyond race, as there is much work to be done to better understand how lawyers contribute to marginalization under law.