//  4/13/17  //  Commentary

Cross-posted from the Indiana Law Journal.  This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution."  You can learn more about this symposium here.

Constitutional law is driven in part by public and judicial attitudes about the security of our core American values: liberty, equality, democracy and human dignity. Narratives about the extent to which government threatens, or does not threaten, these values can shape how easy or difficult the courts make it to enforce constitutional rights and how narrowly or expansively courts read those rights. This suggests that the Trump Administration — which has singled out certain minority groups and backed away from civil rights enforcement — might push courts to rethink current doctrine and make constitutional protections more robust.

With respect to civil rights, two of the most consequential narratives in recent years have been (1) that claims of racial discrimination are overblown and we are approaching a post-racial reality; and (2) that misconduct by law enforcement is limited to the acts of a few bad apples.

The post-racial narrative is familiar by now. Slavery ended 150 years ago. You will not find a “whites only” waiting room or drinking fountain in America. Minorities run Fortune 500 companies, appear in mainstream media, and serve in Congress. And of course, we elected — and reelected — our first black president.

This narrative has played a role in the Supreme Court’s contraction of protections against racial discrimination.

In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Supreme Court struck down voluntary school integration programs because they relied partly on race for student assignments. Rejecting the use of race-conscious remedies for racial harms, Chief Justice Roberts wrote for the plurality, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In his concurrence, Justice Thomas extolled “the colorblind Constitution,” calling it “the rallying cry for the lawyers who litigated Brown,” and compared the dissenters to midcentury segregationists.

In Schuette v. BAMN (2014), the Court rejected an equal protection challenge to a Michigan state constitutional amendment barring affirmative action. In dissent, Justice Sotomayor expressed dismay that the majority believed “we should leave race out of the picture entirely.” “Race matters,” she insisted. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,” rather than to “sit back and wish away . . . racial inequality.” Her exhortation did not carry the day.

In Shelby County v. Holder (2013), the Court dismantled the most effective protection against voting discrimination this country has ever known. In striking down the Voting Rights Act’s coverage formula for preclearance, Chief Justice Roberts explained that “Our country has changed.” Fifty years on, coverage was based on “decades-old data and eradicated practices”; the formula no longer spoke to “current conditions.” It therefore violated the little-known principle of equal sovereignty among the states. In short, ours was now a very different nation, one in which discrimination among the states mattered more than discrimination against racial minorities.

With respect to constitutional constraints on law enforcement, an elaborate architecture of exceptions has been built on the received wisdom that police officers follow the law almost without fail. Systemic misconduct, the idea goes, is vanishingly rare.

For example, the Court has steadily weakened the exclusionary rule, eroding the protections of the Fourth Amendment based on balancing that pits “the substantial costs” of “letting guilty and possibly dangerous defendants go free” against what it sees as isolated and unintentional errors in police work. Herring v. United States (2009) (good-faith exception applies to arrest based on a recalled warrant that remained in a neighboring police agency’s database). In Herring, the Court suggested that the exclusionary rule was meant to apply only to intentional and flagrant violations of rights. The Court allowed that perhaps the rule should apply “[i]n a case where systemic errors were demonstrated,” but saw no evidence of “routine or widespread” errors in the record.

Similarly, in Utah v. Strieff (2016), the Court declined to apply the exclusionary rule to an officer who found drugs on man during a search incident to arrest, even though the encounter began with an unlawful stop. After the stop, the officer asked the man for his license, ran him through a police database, and found an outstanding warrant for a traffic violation. In holding (over a vigorous dissent) that the discovery of the warrant attenuated the taint of the unlawful stop, Justice Thomas emphasized that “there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Never mind that such systemic evidence is not typically uncovered during criminal cases.

Within the Trump presidency, these narratives — that racial discrimination is a historical and dwindling problem, that police misconduct is isolated and insignificant — are articles of faith. They are driving policy. Five weeks into the new administration, the Department of Justice withdrew the intentional discrimination claim from its challenge to Texas’s voter ID law. Last week, Attorney General Jeff Sessions ordered a review of all “existing or contemplated consent decrees” with law enforcement agencies and tried to back out of the decree DOJ already signed with Baltimore, over the city’s opposition. He has lamented that “law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors,” and promised to “pull back” on investigating systemic misconduct.

How will the courts and the American people respond? The answer will determine whether constitutional protections for the most vulnerable among us contract or expand.

With respect to discrimination, it is possible that the Trump presidency will be a wake-up call. Given the nativist overtones of his campaign and his administration’s signature policies — from the Muslim ban to an immigration crackdown that equates being a foreign-born minority with criminality — Trump has exploded the fiction that we live in a post-racial society.

With respect to criminal justice, the courts will have to confront the reality that the federal government is getting out of the business of constitutional enforcement. In a world without DOJ pattern-or-practice investigations, private litigation becomes even more important. To make constitutional rights meaningful, courts may have to lift the procedural barriers they have imposed to standing, class action certification and Section 1983 suits. And they may also have to rethink their cramped substantive reading of constitutional rights. In Strieff, the Solicitor General’s Office invoked the Civil Rights Division’s pattern-or-practice docket as a reason not to apply the exclusionary rule in that case; suppression was unnecessary, given that DOJ could investigate and seek institutional reform of systemic misconduct. That argument is off the table.

The courts are already proving a check on the new administration and its central narratives. They have enjoined both of President Trump’s attempts to bar refugees and Muslims from the country, entered the consent decree in Baltimore and ruled that Texas intentionally discriminated based on race with its voter ID law and its congressional redistricting plan. The question is what lasting changes to constitutional law will result as the courts and the people react to the administration over the next four years.


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