Scalia Allowed Racial Profiling

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.