Constitutional law is not particularly sophisticated about bias, and so it is not very good at protecting people from it. This is nowhere more evident than in the Supreme Court’s jurisprudence around racial profiling. The Supreme Court has conceptualized racial profiling as something only bad police officers do; it has equated bad stops with bad cops. But in recent years, social psychologists have amassed significant evidence showing that most people possess implicit biases and that these biases can affect our behavior, particularly when certain conditions are present. This means that many instances of racial profiling are likely to be unintentional.
Supreme Court jurisprudence makes the Fourteenth Amendment the constitutional vehicle for remedying racial profiling, but the Court has limited that Amendment’s ability to respond to unintentional racial profiling by requiring that plaintiffs show intent to discriminate. I contend that the Fourth Amendment can fill this gap, serving as a powerful tool for addressing contemporary forms of bias. But if the Fourth Amendment is to fill this role, courts must eschew post hoc evaluations of the moral character of the searching and seizing officers in favor of forward-looking, probabilistic assessments of the contexts that are most likely to lead to reasonable outcomes given what we know about human behavior. Rules that constrain officer discretion, encourage restraint rather than action in the face of ambiguity, and hold officers accountable for their choices will lead to more reasonable searches and seizures, because implicit biases will be less likely to be activated with such rules in place.