Samuel Alito and Clarence Thomas Think Police Abuse of Black People Is Kind of Overblown
The conservative justices’ vision of a “color-blind Constitution” is an effort to declare the law powerless to address real-world consequences of illegal discrimination.
On a sunny weekday afternoon in September 2020, four members of the Metropolitan Police Department’s Gun Recovery Unit climbed out of their unmarked cars and approached a group of ten Black men on a sidewalk in northwest Washington, D.C. One of the officers asked 25-year-old Donte Carter if he had a gun on him. Carter, who was leaning against a parked car, said no, and lifted his shirt—twice—to show his empty waistband.
The police, however, had follow-up questions: The same officer asked Carter to hike up his pants, and when Carter did so, another officer noticed an L-shaped “bulge” in his shorts. Based on that observation, the cops frisked Carter and found a handgun. He was charged with an array of gun-related crimes, convicted, and sentenced to 14 months in prison.
Before his trial, Carter filed a motion to suppress the gun as evidence. His argument was that police had “seized” him within the meaning of the Fourth Amendment, which prohibits unreasonable searches and seizures, at the moment the officer told him to hike up his pants, since, as a young Black man, ignoring armed cops from a unit infamous for racial profiling wasn’t a viable option for Carter. And because the police had no reason to suspect him of anything at that time—again, he was just standing on the sidewalk, and had already shown that his waistband was empty—Carter argued that the officers had no grounds to search him.
The trial court rejected his argument, finding that Carter was not seized until after he hiked up his pants, and that the bulge the officer (allegedly) saw provided the reasonable suspicion necessary to frisk him. But in August 2025, a three-judge panel of the D.C. Court of Appeals threw out his conviction. As the court explained, the test for whether a defendant is “seized” is whether an “objective and reasonable person in the defendant’s shoes” would have felt free to end the conversation with police—an analysis that requires the court to consider, among many other factors, the “objective reality that people of color face during interactions with law enforcement.”
From there, the court engaged in a lengthy discussion of the myriad reasons that Black people in America are “especially cautious” around police and “more likely to comply” with their demands, even if they would be within their legal rights to decline to do so. In context, the court found that “an objective and reasonable Black man in Mr. Carter’s shoes” would “feel as though he had to comply with the officers’ demands rather than terminating the encounter.” The clear implication of the cops’ treatment of Carter, the court said, was that he would “continue to be suspected of criminal activity until the officers stopped asking questions.”
From the opinion:
The government, represented here by Solicitor General John Sauer, appealed, but on Monday, the Supreme Court declined to take the case in (as usual) an unexplained, one-sentence order. As a result, if prosecutors try Carter again, they will have to do so without the gun, since police were only able to obtain it by violating his Fourth Amendment rights.
Justice Samuel Alito, a man who is medically incapable of remaining silent when police face meaningful consequences for their conduct, wrote a short dissenting opinion joined by Justice Clarence Thomas. In it, Alito cited the Court’s decisions in Students for Fair Admissions v. Harvard (in which the six conservatives voted to ban affirmative action) and Louisiana v. Callais (in which the six conservatives gutted the Voting Rights Act) to reiterate his view that the Constitution is “color-blind,” and “almost never” allows the government to treat people differently based on race. Alito also highlighted the government’s claim that the lower court’s decision “will hamper legitimate and important police work,” and require cops to learn and apply “special rules” when interacting with members of different minority groups. (The horror!)
The hypothetical “reasonable person” comes up all the time in the law, and reflects the legal system’s need for objective standards of behavior that can be used to evaluate the real choices of real people. But the concept also recognizes that what counts as “reasonable” behavior can depend heavily on the circumstances, and on who decides. To that end, courts are supposed to consider context when making these determinations; again, the test is whether an “objective and reasonable person in the defendant’s shoes” would have felt free to refuse an officer’s request, not “what I, a judge, think I would have done if it had been me.”
In this case, the D.C. court drew what is, in my view, a pretty straightforward and (sorry) reasonable conclusion: that in a country where “Black Americans are disproportionately likely to be victims of violence at the hands of police officers,” and more than twice as likely as white people to be “subject to force or threatened force” during ostensibly routine traffic stops, and more than twice as likely as white people to be shot and killed during these interactions, any fair analysis of the “reasonableness” of Carter’s belief that he was not free to walk away from the Gun Recovery Unit cops has to account for the fact that he is Black.
Alito’s dissent reveals just how broadly he believes a “color-blind Constitution” should sweep. In recent years, the conservative justices have often deployed the phrase to undermine formal legal tools that (attempt to) account for America’s history and tradition of racial discrimination—affirmative action and the Voting Rights Act, for example.
Here, Alito and Thomas are going a half-step further, suggesting that of all the different factors that judges and juries can and are supposed to consider when determining reasonableness, race cannot be among them, no matter how open or severe or pervasive police abuse of Black people might be. For Alito and Thomas, the purpose of the law is not to protect people from racist state violence. It is to propagate the lie that racist state violence no longer exists.
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