A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights.  Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing.  It is long past time for the Court to revisit this area of law. 

In June Medical v. Russo, this term’s blockbuster abortion case, Chief Justice Roberts criticized the Supreme Court’s doctrine protecting the right to choose abortion, even as he applied governing precedent to strike down a restrictive Louisiana law.  His main complaint was the Court’s insistence that judges balance a law’s benefits and burdens in deciding whether a state regulation of abortion imposed an undue burden.  That, Roberts claimed, gives judges too much discretion, inevitably producing results-oriented, arbitrary judging.  Likewise, in Espinoza v. Montana Department of Revenue, he rejected a case-by-case approach to evaluating religious discrimination claims, insisting that such an approach would give “freer rein to judges” and undercut fundamental rights.   

To be sure, the Chief Justice has not sworn off balancing tests entirely.  In Trump v. Mazars, he concluded that a “balanced approach is necessary” to accommodate Congress’ power to engage in oversight as well as principles of separation of powers.   

But overall, the Chief Justice has insisted that clear rules are needed to protect constitutional freedoms.  This insight could transform the constitutional law of policing.   

Our Constitution demands that courts curtail police abuse of power and safeguard personal security for all regardless of race.  Tragically, the Supreme Court has abdicated its responsibility for this part of our constitutional promise of freedom and equality.  Today, we are reckoning with the consequences of a broken system of policing that permits police officers to indiscriminately stop, beat, arrest, and kill people because of the color of their skin or because of where they are from.  How did the Supreme Court take such a wrong turn?  Rather than enforcing the Constitution’s limits on police abuse and police violence, the Court has repeatedly used balancing tests to erode constitutional rights and permit racialized policing practices.   

For more than half a century, the Supreme Court has repeatedly employed ad hoc balancing tests to concentrate more and more power in the police.  Without clear rules protecting the right to life and personal security for all regardless of race, the Court has enabled systemic racial targeting, racial profiling, and racial violence against Black and Brown people.  The killing of George Floyd, Breonna Taylor, Rayshard Brooks, and countless others has laid bare the consequences of the Court’s refusal to lay down rules that limit police abuse of power.   

Terry v. Ohio, the landmark 1968 Supreme Court ruling upholding stop-and-frisk, set the law down this path.  Dispensing with the constitutional requirement of probable cause, the Court employed a balancing test that gave police officers sweeping new powers to stop and accost individuals on the street.  As Chief Justice Earl Warren wrote, there is “‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’”  Terry jettisoned the constitutional command of probable cause and replaced it with a malleable balancing test that permitted police stops and frisks on the basis of reasonable suspicion.  This open-ended approach made it easy for courts to balance away fundamental rights and permit police officers to stop and frisk people—mostly Black and Brown people—with virtually no evidentiary foundation.    

Terry’s approach has been repeatedly stretched to expand the power of the police in many different areas of the law.  The Supreme Court has blessed police violence if “reasonable,” asking courts to engage in a “careful balancing of interests” to determine whether the force used was “objectively reasonable”  from the “perspective of a reasonable officer on the scene.”  Rather than establishing rules that would constrain police brutality, such as a requirement that police use force only when it is necessary, the Court has insisted that judges must “slosh [their] way through the fact-bound morass of reasonableness.”  Without any clear rules, the Court’s doctrine has condoned systemic police violence directed at people of color.   

The list goes on and on.  Using open-ended balancing tests, the Court has permitted racial profiling at checkpoints near the border, airport stops based on easily manipulable drug courier profiles, seizures of automobile drivers and passengers, suspicion-less searches of individuals on parole, mandatory DNA testing of arrestees, intrusive searches of students, including mandatory drug testing, and many more.    The upshot is that the constitutional guarantees that prevent us from being stopped and violently seized at the whim of the police can all be balanced away by the Supreme Court.    

When the Supreme Court balances the intrusion of a search or seizure against the interest in ferreting out crime, the police almost always win.  The Court time and again has deferred to the police, stressing the “[p]ractical realities” that “militate in favor of the needs of law enforcement,” while trivializing the costs of police intrusions on the populace.  The Court’s balancing test inevitably seems to swell police power.     

This reduces our constitutional birthright of personal security to a cost-benefit analysis.  As a result, the Supreme Court’s jurisprudence, time and again, has turned a blind eye to fundamental constitutional principles that recognize that unchecked police discretion breeds discrimination and violence.  The Supreme Court, all too often, has been more concerned with formulating rules that let the police do what they want than in ensuring that the police are held accountable in the manner the Constitution demands.  The waves of police killings and police violence we have witnessed in the last few months are the consequence of decades of rulings that bend over backwards to uphold police conduct as reasonable.  

Chief Justice Roberts’ insistence that open-ended balancing tests lead to results-oriented judging has been borne out in the constitutional law of policing.  An uncabined balancing test has been a recipe for inflating police power.  Now more than ever, as we reckon with our long and tragic history of racialized policing and brutal violence, we need clear constitutional rules that check indiscriminate police power, rein in police violence, and vindicate our Constitution’s promise of personal security for all persons regardless of race.   

Chief Justice Roberts’ own policing jurisprudence is a mixed bag, but his most recent rulings recognize the need for rules to check what he has called “basic Fourth Amendment concerns about arbitrary power.”  In Riley v. California, the Chief Justice wrote the Court’s opinion holding that police cannot search the phone of a criminal suspect incident to arrest without first obtaining a warrant.  Rather than deferring to the police’s insistence that it should be able to search a phone’s digital contents for evidence of crime, Chief Justice Roberts held that the Constitution supplied a clear and simple rule to check police overreach: “get a warrant.”  In Carpenter v. United States, Chief Justice Roberts made a similar move, holding that the government could not obtain an individual’s cell site location information without getting a warrant.  The Constitution, Robert stressed, did not permit the police to engage in “tireless and absolute surveillance” of people’s movements as recorded by their cellular data.  

The killing of George Floyd has laid bare that the law of policing is in shambles today.  If Chief Justice Roberts follows his own counsel, he can help revitalize a critical part of our constitutional promise of freedom and equality that lies buried today.  The Supreme Court cannot fix our broken system of policing on its own, but it can craft rules to check the racialized policing and violence that has led to the killing of so many Black and Brown people.  Clear constitutional rules, as Chief Justice Roberts has insisted, can ensure that judges respect, not water down, our precious constitutional birthright of freedom, equal dignity, and security.    

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