I am thankful for Clark Neily’s deep dive into the intricacies of Whren vs. United States, in part because it allows me to step into the unusual position of defending aspects of a Supreme Court decision upholding far-reaching police authority. While I share Neily’s dismay over the pretextual policing practices at the heart of Whren, I cannot agree that the Supreme Court committed a “breathtaking abdication in Whren.”
How can I possibly reach this conclusion given my own trepidations about the kind of expansive police authority enshrined in Terry v. Ohio? It all comes down to the Court’s deference. More specifically, deference to whom.
In Whren, that deference was to the source of the traffic code: a legislative body. No doubt, that code has run amok, now capturing so much activity of dubious significance as to render nearly every motorist a violator in the long run. But each of those infractions relates to the enforcement of a valid law. The proliferation of those laws does not render any given one moot nor deputize the Court to rein them in selectively in criminal proceedings.
Justice Scalia made exactly this point in Whren: “[W]e are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.”
Pretextual policing is a persistent, significant, and odious problem. All of that makes the lure of a seemingly quick judicial fix especially appealing. But do we really want to empower such wide-ranging judicial activism? Are these not ultimately policy questions better suited for a different organ of government, or at least considered by a court in a more fitting venue than a criminal motion hearing?
Just consider what a court would need to do to resolve a motion based on pretext. One option would be to delve into an individual officer’s motives for the stop in question. Under the assumption that the hypothetical “perfectly candid officer” would remain exactly that in most cases—purely hypothetical—the court would have to turn to other observable displays of pretextual intent. What would these look like, and how, moving forward, could you stop minor alterations to police practices from easily obfuscating these indicators of motive?
So perhaps the court looks instead at an officer’s prior pattern of behavior, or that of his department. But divining pretext based on past actions is a probabilistic endeavor that is somewhat anomalous to criminal procedure—requiring every local trial court judge to become a statistics expert is a recipe for inconsistent decisions and outright errors. What level of disparity in police stops is acceptable, and how do we measure it? If an officer or department crosses this threshold, how long are their future stops presumptively invalid? What is to prevent them from simply tweaking their numbers, potentially by increasing the overall number of pretextual stops (albeit this time of nonminority motorists)?
I’m not suggesting that there are no answers to these questions so much as highlighting just how incredibly difficult they are to answer. Justice Scalia acknowledged the futility of trying to solve this problem in the typical criminal proceeding: “For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.”
The judicial restraint in Whren can be frustrating when viewed as a missed opportunity to strike a blow against pretextual policing. Such a narrow perspective, however, misses the second- and third-order consequences of an opposite holding that could have wreaked havoc as they reverberated through criminal jurisprudence. While we can all lament the perpetuation of pretextual policing, we should probably be thankful that the Court left the problem for more appropriate bodies to solve.