The Supreme Court on Monday refused to hear a case that could force police officers across the country to factor a suspect's race into routine street encounters, and only two justices objected. In a written dissent from the denial of certiorari in U.S. v. Donte J. Carter, Justice Samuel Alito, joined by Justice Clarence Thomas, warned that a lower court's reasoning effectively requires law enforcement to apply different constitutional standards to different people based on the color of their skin.
The case began with a straightforward set of facts. Officers in Washington, D.C., approached Donte J. Carter and asked whether he was carrying a weapon. Carter said no. When police asked him to pull up his pants, they noticed an L-shaped bulge, later identified as a.40-caliber pistol that the government said had been stolen from an FBI agent's vehicle. Carter was convicted on firearm and theft charges.
Then the D.C. Court of Appeals threw those convictions out. The appellate court held that police had effectively seized Carter before they had reasonable suspicion to do so, violating the Fourth Amendment. But the court didn't stop there. It ruled that Carter's race was relevant to whether a reasonable person in his position would have felt free to walk away from the encounter, a finding that Alito called constitutionally dangerous.
The D.C. court's reasoning rested on a stark claim: that Black Americans like Carter are "especially distrustful of law enforcement" and therefore "less likely" than other people "to terminate a police encounter" because of skepticism that any attempt to exercise their rights would be respected. Under that logic, what might count as a voluntary encounter for one citizen could be deemed an unlawful seizure for another, depending on race.
Alito, writing on behalf of himself and Thomas, made clear what he thought of that framework:
"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 line deserves attention. Alito was not merely arguing that the D.C. court got the law wrong. He was warning that a race-conscious standard cuts both ways, and that what helps a defendant today could harm someone from the same group tomorrow.
Alito pressed the point further, describing the impossible position the D.C. ruling creates for officers on the street. If courts require a race-specific analysis of whether someone felt free to leave, officers must first identify the person's race, instantly, in real time, and then apply a different legal threshold accordingly.
"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."
The question is not hypothetical. If the standard for what constitutes a seizure varies by race, then every police encounter becomes a legal guessing game, one where an officer's split-second judgment about someone's ethnicity could determine whether a conviction stands or falls. That is not a standard designed to protect civil liberties. It is a standard designed to paralyze policing.
Thomas's decision to join the dissent fits a pattern. The senior associate justice has repeatedly challenged race-based legal frameworks, from redistricting to university admissions, arguing that the Constitution demands equal treatment regardless of skin color.
Alito anchored his dissent in a line of cases the full Court has already decided. He cited Students for Fair Admissions v. Harvard, the landmark 2023 ruling that struck down race-conscious college admissions. He invoked Louisiana v. Callais and Shaw v. Reno, both of which addressed the constitutional limits on treating individuals as representatives of their racial group.
Quoting Shaw, Alito wrote that the Court has already rejected the idea that the Constitution permits someone 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 is precisely what the D.C. Court of Appeals did. It assumed that because Carter is Black, he would have perceived the police encounter differently than a non-Black person would have, and it used that assumption to vacate his convictions for carrying a stolen federal firearm.
Yet seven justices declined to review the case. The Court offered no explanation for refusing certiorari, as is customary. But the silence is telling. A lower court adopted a race-conscious standard for Fourth Amendment seizures, and the nation's highest court chose to let it stand, at least for now.
The immediate consequence is narrow: Carter's firearm and theft convictions remain vacated. The.40-caliber pistol stolen from an FBI agent's vehicle was suppressed as evidence. The government's case collapsed.
The broader consequence is anything but narrow. The D.C. Court of Appeals has established a precedent within its jurisdiction that a suspect's race is a legally relevant factor in determining whether a police encounter crossed the line into an unlawful seizure. Other courts may follow. Defense attorneys in jurisdictions nationwide will cite the reasoning. And officers will face mounting uncertainty about what the law actually requires of them during routine stops.
Thomas has found himself on the losing side of the Court's decisions before. He has rebuked the majority for prioritizing certain defendants over ordinary Americans, and he has challenged the Court's refusal to take up cases he views as constitutionally significant. In Carter, his willingness to join Alito's dissent signals that he sees the D.C. ruling as a serious threat to equal treatment under law.
The dissent also raises a question the majority apparently did not want to answer: where does this framework end? If courts must evaluate whether a Black suspect felt free to leave based on group-level distrust of police, must they do the same for Hispanic suspects? For Asian Americans? For recent immigrants? Alito posed these questions directly. No one on the other side answered them.
Lost in the legal theory is the fact that officers recovered a stolen weapon from a man who lied about carrying it. Carter told police he was unarmed. He was not. The pistol in his waistband had been taken from a federal agent's vehicle. Those are not disputed facts. They are the reason Carter was convicted in the first place, convictions that no longer exist because a court decided his race changed the constitutional calculus.
Thomas has long pushed the Court to confront doctrines he views as inconsistent with the Constitution's original meaning, even when it means standing alone. In this case, he stood with Alito, and against a legal standard that treats the Constitution as something other than color-blind.
The government had argued that the D.C. ruling effectively forced police to assume all Black people share the same attitudes toward law enforcement. That is not equal protection. It is racial stereotyping dressed in progressive language. And now, because seven justices chose silence, it is the law in at least one American jurisdiction.
The Supreme Court declines to hear most cases brought before it. That is ordinary. What is not ordinary is a lower court building race into the Fourth Amendment's reasonable-person standard and the full Court declining to weigh in, especially after spending the last several terms dismantling race-conscious frameworks in education and redistricting.
Alito and Thomas saw the contradiction. The rest of the bench, for reasons it did not share, did not.
A constitution that means different things depending on who you are is not a constitution at all. It is a set of preferences, and preferences change with the political winds.