The Supreme Court on Monday declined to hear a case in which a D.C. appeals court used a defendant's race to decide whether police had seized him, and Justices Samuel Alito and Clarence Thomas fired back with a dissent warning the ruling sets a dangerous, unconstitutional precedent for law enforcement across the country.
At issue is U.S. v. Donte J. Carter, a case that began with a routine police encounter in Washington, D.C., and ended with the D.C. Court of Appeals vacating Carter's firearm and theft convictions. The appeals court held that because Carter is Black, a reasonable person in his position would have felt less free to walk away from officers, and therefore police effectively "seized" him before they had reasonable suspicion to do so.
The Supreme Court's refusal to take up the case lets that reasoning stand. And as Fox News reported, Alito's written dissent, joined by Thomas, laid out in blunt terms why the D.C. ruling collides with settled constitutional law on race-neutral government action.
The underlying facts of the Carter case are straightforward. Police approached Donte J. Carter and asked whether he was carrying a weapon. Carter said no. Officers then asked him to pull up his pants, at which point they noticed an L-shaped bulge. That bulge turned out to be a.40-caliber pistol, one that had been stolen from an FBI agent's vehicle.
Carter was convicted on firearm and theft charges. But the D.C. Court of Appeals reversed those convictions, ruling that the encounter became a seizure before officers had developed reasonable suspicion. The key move: the court factored Carter's race into its analysis of whether a "reasonable person" in his position would have felt free to end the encounter and leave.
The appeals court concluded that "black Americans like [Carter] are 'especially distrustful of law enforcement'" and therefore "'less likely' than other people 'to terminate a police encounter' due to skepticism that any attempt to exercise their constitutional rights will be respected."
That reasoning is what drew Alito's sharpest criticism.
In his dissent from the cert denial, Alito wrote that the D.C. court's framework requires police officers to do something the Constitution forbids, treat individuals differently based on their race. He framed the problem in operational terms that any officer on patrol would recognize immediately.
"Under the test, officers will need to quickly assess a person's race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups? We have said that our '[Constitution is color-blind].' It 'almost never' allows government actors to treat persons differently based on their race."
Alito cited three major Supreme Court precedents: Students for Fair Admissions v. Harvard, Louisiana v. Callais, and Shaw v. Reno. Each stands for the principle that race-based government action faces the highest constitutional scrutiny, and that grouping individuals by racial identity for differential treatment is exactly what the Equal Protection Clause was designed to prevent.
Justice Thomas, who has long pressed the Court to confront race-conscious legal frameworks head-on, joined the dissent without a separate opinion. Thomas has repeatedly rebuked the Court for declining to address what he views as foundational legal errors, and his willingness to join Alito here signals deep concern about the D.C. ruling's reach.
Strip away the legal jargon and the D.C. court's holding creates a practical absurdity for street-level policing. If a person's race changes the legal threshold for when a police encounter becomes a seizure, officers must first determine, in real time, what racial or ethnic category a person belongs to. Then they must apply a different legal standard based on that determination.
Alito drove at this directly. Government lawyers representing the United States argued that the D.C. ruling effectively forces police to assume all Black people share the same attitudes toward law enforcement, a form of racial stereotyping the Supreme Court has rejected in other contexts.
As Alito wrote, citing Shaw v. Reno:
"And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a 'perception that members of the same racial group, regardless of their age, education, economic status, or the community in which they live, think alike.'"
That line cuts to the core contradiction. The D.C. court relied on generalized studies and expert testimony about group attitudes to determine what one specific individual would have felt during one specific encounter. It treated racial group membership as a proxy for individual psychology. And it did so in a way that, as Alito noted, could cut both ways.
"It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not."
That last sentence is the one that should keep civil libertarians on both sides awake at night. If race can be used to lower the seizure threshold in a defendant's favor today, the same logic could be used to raise it against someone else tomorrow.
The Alito-Thomas dissent fits a broader pattern at the Court this term. Both justices have signaled a willingness to challenge their colleagues when they believe the Court is ducking hard questions. Thomas in particular has called on the Court to revisit legal doctrines he considers untethered from the Constitution's text, and he has not been shy about saying so in writing.
The Supreme Court's current term has been packed with consequential cases. With the June decision season reaching its peak, the justices face enormous pressure to manage a loaded docket. Cert denials like this one often pass without public comment. The fact that Alito and Thomas chose to write, and to write at length, suggests they view the D.C. ruling as more than a one-off anomaly.
Neither justice has shown signs of stepping back from the fray. Both have signaled they have no plans to leave the bench anytime soon, and dissents like this one explain why their continued presence matters to the conservative legal movement.
With the Supreme Court declining to intervene, the D.C. Court of Appeals ruling stands. Carter's firearm and theft convictions remain vacated. The.40-caliber pistol stolen from an FBI agent's vehicle, the gun Carter lied about carrying, is no longer the basis for a criminal conviction.
Several questions remain unanswered. It is unclear whether the government plans to pursue further legal action following the cert denial. The specific studies and expert testimony the D.C. court relied upon in reaching its conclusion have not been detailed in public reporting. And no other justice commented publicly on the case, leaving open the question of whether any of the remaining seven had reservations about letting the ruling stand.
What is clear is the precedent the D.C. court has now set within its jurisdiction. Officers policing the nation's capital must now account for a suspect's perceived race when evaluating whether an encounter has crossed the line into a seizure. That is not a neutral legal development. It is a race-conscious rule imposed on the very officials the public expects to enforce the law without regard to skin color.
The Supreme Court's recent willingness to intervene in other high-profile cases makes its silence here all the more conspicuous. When the Court speaks, it shapes the law. When it stays quiet, it lets lower courts shape it instead, sometimes in ways the Constitution does not support.
The D.C. ruling asks police to do something no officer should be asked to do: size up a citizen's race before deciding what legal rules apply. It asks courts to treat racial group membership as evidence of individual psychology. And it does all of this under the banner of protecting civil rights, while importing exactly the kind of race-based government action the Fourteenth Amendment was written to forbid.
Alito and Thomas saw the problem. Seven of their colleagues chose not to look.
A constitution that is colorblind on Monday and race-conscious on Tuesday is no constitution at all.
