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The Fourth Amendment and the Color-Blind Constitution

A tale of two doctrines.

Orin S. Kerr | 6.24.2026 1:52 PM

When applying Fourth Amendment doctrine, to what extent can race and ethnicity be considered? The Supreme Court denied cert on Monday in United States v. Carter, a case on this question—specifically, on whether the Fourth Amendment test for whether a person is "seized" factors in the person's race.  There's an interesting connection between this issue and last fall's debate over the role of race in immigration stops, raised in Noem v. Vasquez Perdomo. I thought it might be worth flagging the potential connection, and to ask about ways to distinguish how the law approaches them.

Here's the context.  Carter asked the Court to resolve a longstanding open question in Fourth Amendment law: When applying the Fourth Amendment test for when a person is seized—whether a reasonable person in that situation would feel free to terminate the encounter and leave—does the suspect's race matter?  There's a split among lower courts. Some courts say that there is one reasonable person standard for people of any and all races.  Other courts say that people of different races tend to have different experiences with the police, and that those different experiences can can lead to a different sense of when they are free to leave. Under the first approach, race is irrelevant; under the second approach, race is relevant.

Justice Alito dissented from the denial of certiorari, joined by Justice Thomas.  Justice Alito's dissent raised the question of whether a broader commitment to a color-blind Constitution answered the question in Carter:

We have said that our "'Constitution is........

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