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Whether or not one believes racial discrimination in the drug war was inevitable, it should have been glaringly obvious in the 1980s and 1990s that an extraordinarily high risk of racial bias in the administration of criminal justice was present, given the way in which all crime had been framed in the media and in political discourse. Awareness of this risk did not require intimate familiarity with cognitive bias research. Anyone possessing a television set during this period would likely have had some awareness of the extent to which black men had been demonized in the War on Drugs.

The risk that African Americans would be unfairly targeted should have been of special concern to the U.S. Supreme Court—the one branch of government charged with the responsibility of protecting “discrete and insular minorities” from the excesses of majoritarian democracy, and guaranteeing constitutional rights for groups deemed unpopular or subject to prejudice.45 Yet when the time came for the Supreme Court to devise the legal rules that would govern the War on Drugs, the Court adopted rules that would maximize—not minimize—the amount of racial discrimination that would likely occur. It then closed the courthouse doors to claims of racial bias.

Whren v. United States is a case in point. As noted in chapter 2, the Court held in Whren that police officers are free to use minor traffic violations as an excuse to stop motorists for drug investigations—even when there is no evidence whatsoever that the motorist has engaged in drug crime. So long as a minor traffic violation—such as failing to use a turn signal, exceeding the speed limit by a mile or two, tracking improperly between the lines, or stopping on a pedestrian walkway—can be identified, police are free to stop motorists for the purpose of engaging in a fishing expedition for drugs. Such police conduct, the Court concluded, does not violate the Fourth Amendment’s ban on “unreasonable searches and seizures.”46

For good reason, the petitioners in Whren argued that granting police officers such broad discretion to investigate virtually anyone for drug crimes created a high risk that police would exercise their discretion in a racially discriminatory manner. With no requirement that any evidence of drug activity actually be present before launching a drug investigation, police officers’ snap judgments regarding who seems like a drug criminal would likely be influenced by prevailing racial stereotypes and bias. They urged the Court to prohibit the police from stopping motorists for the purpose of drug investigations unless the officers actually had reason to believe a motorist was committing, or had committed, a drug crime. Failing to do so, they argued, was unreasonable under the Fourth Amendment and would expose African Americans to a high risk of discriminatory stops and searches.

Not only did the Court reject the petitioners’ central claim—that using traffic stops as a pretext for drug investigations is unconstitutional—it ruled that claims of racial bias could not be brought under the Fourth Amendment. In other words, the Court barred any victim of race discrimination by the police from even alleging a claim of racial bias under the Fourth Amendment. According to the Court, whether or not police discriminate on the basis of race when making traffic stops is irrelevant to a consideration of whether their conduct is “reasonable” under the Fourth Amendment.

The Court did offer one caveat, however. It indicated that victims of race discrimination could still state a claim under the equal protection clause of the Fourteenth Amendment, which guarantees “equal treatment under the laws.” This suggestion may have been reassuring to those unfamiliar with the Court’s equal protection jurisprudence. But for those who have actually tried to prove race discrimination under the Fourteenth Amendment, the Court’s remark amounted to cruel irony. As we shall see below, the Supreme Court has made it virtually impossible