Is Whren v. US the Worst Case Not Yet Overturned by the US Supreme Court?

The United States Supreme Court has issued lots of rulings since the dawn of the country. Some are inspiring statements of the American Experiment’s loftiest goals. Some are essential but curiously late additions to foundational constitutional doctrines. Some are interesting historical footnotes.

And a surprisingly large number are terrible relics of hate and bigotry. Figuring out which is the worst case still “on the books” is like trying to find the sickest person in a hospital—there is a lot of competition. Buck v. Bell, a case where Oliver Wendell Holmes endorsed a forced sterilization law imposed on a woman who turned out to be perfectly healthy, is awful. “Three generations of imbeciles is enough…” might be the most ironically ignorant quote in any Supreme Court opinion. It is chillingly similar to Nazi ideas that would arise less than ten year after Holmes penned the quote. Plessy v. Ferguson, which endorsed the racist idea that segregation is okay, so long as both groups are treated equally, is still, technically, good law and horribly cruel. Brown v. Board of Education ruled that separate in the area of schooling is inherently unequal, but did not strike down Plessy’s holding. Lots of people think Citizen’s United v. FEC is a terrible decision and it too is still good law.

All of these bad cases are poorly reasoned and all are certainly contenders (one of the other “worst cases ever” Korematsu v. US, was recently overturned in Trump v. Hawaii), but one case stands out in terms of its enormously broad impact—Whren v. US. This 1995 Antonin Scalia opinion is a dreadful, stupid, and lazy. It has also strongly contributed to the massive polarization in this country over policing in a way that most people do not understand. Whren has harmed police standing in communities and with minorities all across the country. It is a perfect example of unintended consequences—Whren turbocharged racial tensions and police distrust. The problem is the thread from Whren to George Floyd is hard to follow. I am going to try to lay it out here. Part of this thread is traced by Malcom Gladwell in his book “Talking to Strangers.”

In Talking to Strangers, Gladwell recounts how Kansas City was facing a crime epidemic in the 80s and 90s (was it a crime epidemic or an addiction epidemic where drugs were criminalized?). Struggling to find answers, Kansas City’s police department adopted a radical approach called preventative policing. In this approach, they would stop people for de minimis motor vehicle reasons when their gut told them something was wrong. Using these de minimis reasons, they would use any legal reason to keep the stop going in the hopes of finding evidence of a “real crime.” The results were astounding—crime dropped precipitously in high crime areas, tickets rose dramatically (in one state they doubled for 400,000 to 800,000), and people were stopped for virtually no reason at all.

The results were so “successful” that the approach became the guide for a book called Tactics for Criminal Patrol by Charles Remsberg. Using the Kansas City model, police across the country were trained to stop people all of the time. Eventually these de minimis stops reached the Supreme Court and there, the Court failed America and sent us on the path to George Floyd. In Whren the Court held that police can use pretextual reasons to stop people. That is, police can stop cars for tons of inconsequential violations of the motor vehicle, things like a license plate bulb being out. In many cases, these violations are based on vague judgment calls (“following too close,” “yellow line violations,” “muffler being ‘too loud’…” or “items that are too large or distracting hanging from the rear view mirror”). Armed with Supreme Court approval and DMV codes that are almost infinitely punitive, police could stop people whenever they wanted. And they did.

In Talking to Strangers, Gladwell highlighted Sandra Bland, but there are dozens of famous examples of cases gone wrong, all without any legal problem due to Whren. Furthermore, Whren has allowed racist motives to drive policing. If you are a bigot and hate black people, Whren allows you to stop them for a slightly louder muffler, even if your true motive is race-based. Stopping people because you hate the color of their skin is fine in a world ruled by Whren. If pretext is okay, then true motives, racist or not, don’t matter.

But some states have pushed back, witnessing the harm wrought by Whren. Massachusett’s Supreme Judicial Court has made Whren stops in Massachusetts much more difficult. Instead of allowing pretextual justifications the Supreme Judicial Court, in Commonwealth v. Long, modified a pre-existing test used for selective prosecutions. This new test allows defendants to “get behind” pretextual stops and litigate actual motives. The standard, similar to one used in employment cases outlined in McDonnell Douglas Corp. v. Green, will serve to erode Whren quickly. In New Hampshire, Judge Andrew Schulman wrote an order powerfully criticizing Whren’s logic. The writing is on the wall for Whren. Its days are numbered thanks to an almost unique instance of the bench and the street slowly starting to agree with each other. Only law enforcement remains as a supporter of Whren.

But there is a chance that police and their allies will see Whren as a problem soon too. Sure, they can stop people more easily and go on legally justified fishing expeditions, but all of this intrusion has eroded police standing in communities, especially communities of color. It also made strange bedfellows. Koch Brothers-funded political action groups, typically on the right of the political spectrum, are now pushing for major police reform. And the tensions of the summer of 2020 continue to rise with each shooting and bad stop turned tragedy. Police need the community they serve to help them. The community helps them solve crimes. It tips them off to danger. And, importantly, positive community relationships make the job more rewarding. I would imagine that being a police officer today often feels like you are at war with the people you are serving. That is clearly and indisputably Whren’s fault. When the very foundation of your interaction with the community is, by court approval, a lie, trust and credibility runs out quickly.

Whren needs to go. It might not be the worst reasoned case still on the books, but it is the one that has the largest impact. Getting rid of Whren using Massachusett’s model would be a simple and effective way to safely help rebuild faith in the police, which would, in turn, make all of us safer.