The policy process framework tells us public imagery of a problem is key for understanding whether the process will respond to the problem. Problem-definition and framing help dictate also how the process is oriented. In the case of racial tracking, the U.S. Supreme Court is the most likely institution from which one might expect a clear and principled statement regarding its problematical elements, for a number of reasons. The Founders labeled the judiciary the guardian of constitutional liberties and protector of minority rights and interests. Alexander Bickel characterized the Supreme Court in particular as “the institution of our government” best equipped “to be the pronouncer and guardian of (enduring) values.” The modern Court played a pivotal role in articulating the constitutional and moral bases for the historic civil rights movement targeting racial inequality. The same court facilitated the criminal rights revolution of the sixties.

Quite apart from expectations, however, the reality is that the Court never regarded the persistent racial divide in American criminal justice as legally or ethically problematic. By way of a color-blind approach to adjudicating race-related challenges to law enforcement throughout its history, and especially from 1932 to 2005, the Supreme Court essentially ignored the deeply rooted systemic racial influences in law enforcement. It never really mattered to the Court that the black law enforcement experience is fundamentally distinctive from that of whites. Lani Guinier and Gerald Torres argue in The Miner’s Canary that a more deliberate, progressive racial consciousness in America as a whole is a critical first step toward meaningful racial reform. However, this principle-setting institution never raised a red flag regarding the persistent racial disparities in criminal process. True, there were occasions on which the Court struck down certain instances of deliberate discrimination by criminal justice actors, but the notion that the criminal justice system itself is inherently flawed by racial difference or that race as a social and political construct is inextricably bound up in criminal process is an idea that failed to gain a foothold in federal criminal jurisprudence.