How the Supreme Court Laid the Foundations for ‘Racialized Policing’

When Berkeley Law School Dean and constitutional scholar Erwin Chemerinsky taught Criminal Procedure in the Fall of 2019, he became frustrated when he realized many of the cases that were the subject of his lectures ended with the police winning and the rights of suspects losing.

So Chemerinsky, one of the nation’s leading authorities on constitutional law, decided to write a book focusing on how the Supreme Court has (or has not) addressed the challenge of policing throughout its judicial history. The title neatly summed up his conclusion: “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”

While Chemerinsky doesn’t believe public opinion can—or should—influence the Supreme Court, he is worried about Court’s increasingly conservative trend. He believes, instead, that the political process – operating through Congress, state legislatures, city councils—offers the best hope of change.

In a wide-ranging conversation with The Crime Report, Chemerinsky discusses why modern policing’s roots as slave patrols is critical to an understanding of law enforcement today, why  Terry v. Ohio was the biggest mistake made during the most liberal era in Supreme Court history, and why the concept of policing in a democracy has been struggling to regain its footing ever since.

[The following transcript has been edited for space and clarity.]

THE CRIME REPORT: To start, I’m curious about why you think people might have the impression that the Supreme Court upholds rights when in reality the way you describe it in the book, they have made decisions that are pro-police?

ERWIN CHEMERINSKY: I don’t think most people are aware of what the Supreme Court has done in the criminal justice context. I think people are aware of high-profile issues… what the Supreme Court does on abortion, gun rights, affirmative action, but my guess is that people don’t realize that there has been no Supreme Court decision since 1986, 35 years ago, about eyewitness identification. I don’t know how much people realize the Supreme Court has made it very difficult for there to be remedies for Fourth Amendment violations… the cases in this area don’t usually make headlines, don’t reach public awareness.

THE CRIME REPORT: Making public headlines and raising public consciousness seems to conflict with the idea of a Court standing outside politics. Could that high profile role operate in reverse, as a way to persuade Justices to take a different approach?

CHEMERINSKY:  I think you’re asking two things. One, ‘Is public pressure in this area of life going to change the Supreme Court?” And I think the answer is no. I’m not saying there is no relationship between public attitudes and what the Court does, but I think in this area I don’t see any indication that the Supreme Court is going to be changing its jurisprudence. None of the conservative justices have ever expressed reservations about how policing is done in the United States. Or [expressed] concerns about racialized policing.

The other thing you may be asking is “are we likely to have people be more informed about what the Supreme Court does in regard to policing?” I would have thought so more a year and a half ago after the death of George Floyd. The Supreme Court handed down two terrible decisions recently, both concerning excessive-force cases in which they found police officers were protected by qualified immunity.

THE CRIME REPORT: Are there other places where the Supreme Court might expand individual protections?

CHEMERINSKY:  In the criminal justice context, no.  I don’t think you’re going to see the Court on the side of criminal suspects. You ask about individual rights. I think they will very much expand Second Amendment rights.

THE CRIME REPORT: Moving very far backwards… the way you describe the history of police was very interesting, particularly how the Court stressed sheriffs were paid to perform tasks that people wanted them to… is part of your contention that the police evolved as a means of protecting property owners?

CHEMERINSKY:  The first antecedents of modern police officers in the United States were the slave patrols. I think it’s an important thing that many people aren’t aware of, and I wanted to trace the historical origins of these forces.

THE CRIME REPORT: Important in what way?

CHEMERINSKY:  I don’t think people realize that police forces didn’t exist as we know them today until well into the 19th century. It helps to explain why there are very few Supreme Court cases for the first hundred years of American history dealing with Fourth Amendment, Fifth Amendment rights.

THE CRIME REPORT: As in, it wasn’t always this way, or are you suggesting or asking people to imagine how it might not always be this way?

CHEMERINSKY:  I wasn’t focused on using it to support a more normative claim about policing. I wanted to describe what policing was relative to answering the question why there were so few Supreme Court cases dealing with the Fourth and Fifth Amendments prior to the late 19th century.

THE CRIME REPORT: Is there a need for the general population to buy into the legitimacy of the Court for their decisions to matter. Is that a key to reinforcing the authority of Supreme Court decisions,  or maybe will be in the future?

 CHEMERINSKY:  I don’t know how much it has ever been part of Supreme Court decisions. There have been some justices who have stressed it. On the other hand, the Court’s job is to interpret and enforce the Constitution, and I’m skeptical that the Court should be basing its decisions on what’s going to please the public. Ruling in favor of criminal suspects and defendants almost never enhanced the Court’s overall image with the general public.

THE CRIME REPORT: What do you mean?

CHEMERINSKY:  Rarely has a legislature expanded the rights of criminal suspects and criminal defendants and prisoners. Most people want to feel safe and so the Supreme Court, if it hands down decisions protecting criminal suspects and criminal defendants, is not going to please most of the public.

THE CRIME REPORT: Do you notice any differences? You’ve obviously read a lot of cases in your career. … do you notice a difference in language or the ways in which opinions are written as time passes?

 CHEMERINSKY:  Yes, opinions have become much longer and the justices have become much more sarcastic and acerbic in their language. I think this started with Justice Scalia and I think it’s had an effect in terms of how other justices write and on how lower court judges write.

THE CRIME REPORT: What do you think of that change?

 CHEMERINSKY:  I think it’s a terrible change. I’ve written about this. Entirely apart from his jurisprudence, I think the sarcasm of Justice Scalia ‘s opinions sets a terrible example for lawyers and law students on how to write.

THE CRIME REPORT: Because it’s not getting the point across?

CHEMERINSKY:  It’s not substantive, And it’s not civil. You know when Justice Scalia says if I ever was writing an opinion with the majority I wouldn’t leave the house with a bag over my head. That doesn’t add anything; it’s just mean.

THE CRIME REPORT: There was only one era in which there was a liberal majority that was able to push forward some of the protections that you write about in the book. What was the biggest mistake there?

CHEMERINSKY:  Terry v. Ohio paved the way for what we have now—which is that police can stop virtually any person at any time. It’s a power that is used in a very racialized way.

THE CRIME REPORT: What should they have done instead?

CHEMERINSKY:  I think what they should have said is the Fourth Amendment standard is probable cause and police can’t stop and search somebody unless they have probable cause a crime was committed. I think the court made a terrible mistake … making a much more lenient standard reasonable suspicion.

THE CRIME REPORT: Why? Just because a reasonable standard is subjective?

Erwin Chemerinsky

CHEMERINSKY:  Well, all standards are subjective. But the Court says more than a hunch, less than probable cause. I’m critical of it because the Fourth Amendment standard is probable cause and the court abandons the standard from the Fourth Amendment. But most of all, I’m critical of it because it really does make it possible for the police to stop virtually anyone at any time and then search them.

THE CRIME REPORT: Does that ever get changed? Or does stare decisis make it stuck as a precedent?

CHEMERINSKY:  Anything the Supreme Court decides it could reverse. The Court could reverse Terry v. Ohio but there’s no indication the Court is going to do so.

THE CRIME REPORT: What persuaded you to write this book?

CHEMERINSKY:  I’ve taught criminal procedure many times, and in the end I became frustrated that in every case the police win and the rights of suspects lose. I hadn’t seen anybody write the book I wanted to, which focused on, historically, how has the Supreme Court dealt with [the challenge of] controlling the police?

 What was I hoping to accomplish? I want to elaborate for a general audience how the Supreme Court has failed to enforce parts of the Constitution that affect criminal suspects. I want people to see that Supreme Court has contributed significantly to the problem of racialized policing in the United States. I want to offer remedies.

The solutions aren’t going to come from the Supreme Court. But I argue in the last chapter that the political process–Congress, state legislatures, city councils, police commissions–can take action. State Supreme Courts can interpret state constitutions to protect more rights. The Justice Department can sue police departments for a pattern and practices of civil rights violations.

THE CRIME REPORT: I know that you say the Supreme Court can’t solve these problems and won’t.

CHEMERINSKY:  They can, but they won’t.

THE CRIME REPORT: If the Supreme Court is also unwilling to make decisions that impact things like voting rights or other types of protections in that way, what actually moves it forward, in your opinion?

CHEMERINSKY:  I want to draw a distinction between two situations. One is where the Court fails to protect rights that should be protected. And that’s where the political process and state courts can step in. The other situation is where the Supreme Court defines constitutional rights that limit what state and local governments can do. If the Supreme Court declares that all affirmative action violates equal protection, there’s nothing a state government can do. I’m focusing on the former situation: where the Court fails to find rights or remedies in the Constitution. And what I want to say, and I argue in the last chapter, is there are other agents for change who can be effective: Congress, state legislatures, city councils, police commissions, state supreme courts.

THE CRIME REPORT: What could happen at the state level?

CHEMERINSKY:  There are lots of examples. A year ago, California adopted a law prohibiting the police from using a chokehold. Many cities have prohibited the police from using the chokehold.  California changed the standard with regard to excessive force. Under Supreme Court precedent, police can use deadly force if it’s reasonable. California law now says police can use deadly force only when it’s necessary. California just adopted a law that requires a police officer to know the officers are violating the rights of someone.

Another example: Three cities in North Carolina said police [require] consent to search, and it needs to be written consent. They found a tremendous decrease on searches based on consent when people were informed of their rights in writing.  It can be done by states, it can be done by Congress.

The difficulty of relying on state and local governments is there’s tremendous variation across the country and politics. Some will act. Many won’t.

THE CRIME REPORT: Please discuss the City of Los Angeles v Lyons case in which the Supreme Court limited the ability of individuals to sue police for injunctive relief.

CHEMERINSKY:  The Supreme Court says a person can’t sue for an injunction unless the person can prove that the harm is likely to happen to him or her personally again in the future. Lyons had been choked by Los Angeles Police officers and wanted an injunction to stop the use of the chokehold. The Supreme Court said Adolph Lyons can’t show he’s likely to be choked in the future. No one ever will be able to show they are likely to be choked in the future, because you can’t prove that’s going to happen in that way.

This is a Court that’s very restrictive with regard to the ability to sue police and that’s found in the latter part of Justice White’s opinion. I’ll always wonder if that case had come out differently, and the court had found the chokehold unconstitutional, would it have saved the lives of people like Eric Garner and George Floyd and many others?

THE CRIME REPORT: How would you describe the current Supreme Court?

CHEMERINSKY:  Conservative. It’s a very conservative court. There are six conservative justices appointed by Republican presidents.

THE CRIME REPORT: Does that frustrate you?

CHEMERINSKY: The Warren Court ended in 1969, six years before I started law school. My professional career has been with Supreme Courts that are ever more conservative. It’s just gotten gradually more conservative with each era. Now it’s the most conservative it’s ever been since the 1930s. To use your word, is that frustrating, infuriating, sad, tragic? I’ll agree to all those words.

THE CRIME REPORT: It is interesting that a Court which wants to be seen as apolitical reflects the politics of a segment of the population that increasingly leans right.

 CHEMERINSKY:  I think of the American people as a little bit left of center. Between 1992-2020, Democrats won every popular vote in every presidential election but one in 2004. On the other hand, Trump was three million votes from winning the popular vote in 2016, seven million in 2020. Look at what happened this month in Virginia. Maybe now we’re a little right of center But with five justices on the Supreme Court who are far to the right of center, what’s that going to mean in the long term?

THE CRIME REPORT: How does that influence your perspective on the future of our democracy?

CHEMERINSKY:  I think our democracy is in more danger than at any time in American history. We almost had a coup on January 6. Had Mike Pence done what Donald Trump wanted and declared Trump President, we would have had a coup for the first time. Thirty percent of the American people and 70 percent of Republicans believe the election was stolen from Donald Trump. No evidence to support that whatsoever. It makes me really worried about the future of democracy.

THE CRIME REPORT: These are justices who are educated and for the most part would say they believe in the rule of law. What about that, if anything, makes you optimistic about the Court?

CHEMERINSKY:  What makes me optimistic is the sweep of American history. Over the course of American history, there have been tremendous advances in equality and freedom. Our country has a huge way to go in racial equality, but compared to 1787? Or even when I was born in 1953? We have an enormous way to go in gender equality. But there’s no doubt it’s radically different than it was.

With regards to sexual orientation, it’s just six years since the  Supreme Court found a right to marry for gays and lesbians. Freedoms have expanded over time. That’s what gives me optimism. Even if we’re in for a period of retrenchment with this Court, I’m optimistic for the future.

Lauren Sonnenberg is a California-based contributor to The Crime Report.