Before anticipating the future, let’s reflect on the past of race and the role of law in the United States. Race and the law in the early history of the United States was defined by the institution of slavery, which predated the establishment of the United States but was retained at the creation of our country. Although the words slave and slavery are not used in the Constitution, the enumeration clause in Article I, Section 2, permitted the southern slave states to count the slaves residing therein as three-fifth persons for purposes of apportionment of seats in Congress; Article I, Section 9, denied to Congress the power to prohibit the importation of new slaves into the United States until 1808; and Article IV, Section 2, provided that any slave who escaped to a free state was not thereby made free, but had to be returned to his or her owner upon presentment of a claim of ownership.
In the nineteenth century, the dominant event in American history was the Civil War, which had as one of its goals, and certainly one of its consequences, the passage of the 13th Amendment to the Constitution, which outlawed slavery in the United States. Prior to the war, in 1857, Chief Justice Roger Taney, writing for the Supreme Court in the case of Dred Scott v. Sandford, had held that Congress did not have authority to regulate slavery in the territories, that Negroes, whether slave or free, could not be American citizens, had no standing to sue in federal court and “had no rights which the white man was bound to respect.” The Civil War and the 13th and 14th Amendments to the Constitution mooted this decision.
The Reconstruction Period in the South, from 1865 to 1877, saw a consolidation of the new legal, political, and economic freedom for African Americans. But when federal troops were withdrawn from the South in 1877, many of the gains that Black Americans had made during Reconstruction were lost, amid a rise in Jim Crow laws, racial violence, including widespread lynching beginning in the 1890s, and legally enforced segregation across the South. Black Americans lost many of the legal rights, including the right to vote, they had gained during Reconstruction. Thus, in 1896, in the case of Plessy v. Ferguson, the US Supreme Court upheld the segregationist doctrine of “separate but equal” in public accommodations. This doctrine would be applied to public education as well, despite the reality that when facilities for Black Americans were separate they were rarely equal. The problem of slavery was resolved by the Civil War. It would take another kind of struggle in the twentieth century to address these other, unresolved issues.
So it was that in 1900 in his lecture to the Third Annual Meeting of the American Negro Academy, and again in 1903 in his book, The Souls of Black Folk, Dr. W.E.B. Du Bois famously wrote: “The problem of the twentieth century is the problem of the color-line.” By “color-line,” he meant the role of race and racism in society.
How America responded to racial disparities was a theme that was played out in America across the arc of the twentieth century, culminating in the civil rights struggle from the 1940s through the 1960s, when issues of integration in housing, employment, and public education, voting rights, and the role of the police in African American communities, dominated the domestic agenda of the nation to such an extent that historian Taylor Branch, in his magisterial three-volume biography of the Rev. Dr. Martin Luther King, Jr., could refer to the decade from 1958 to 1968 as “America in the King Years.”
In the Supreme Court, the move to overturn the “separate but equal” doctrine of Plessy v. Ferguson gained impetus through a series of cases including Missouri ex rel. Gaines v. Canada (1938), Sweatt v. Painter (1950), and McLaurin v. Oklahoma State Regents (1950), that culminated in the final overthrow of “separate but equal” in what is arguably the most famous Supreme Court case of the twentieth century, Brown v. Board of Education (1954 and 1955).
Throughout the 1960s and 1970s the Supreme Court decided a range of cases promoting civil and human rights including for example, Gideon v. Wainwright (1963), holding that the Sixth Amendment required states to provide counsel to indigent defendants charged with serious crimes; Loving v. Virginia (1967), striking down state laws that prohibited inter-racial marriage; Miranda v. Arizona (1966), holding that a detained criminal suspect must be informed of his or her constitutional rights, including the rights to counsel and against self-incrimination, prior to police questioning; Jones v. Alfred H. Mayer Co., (1968), holding that the Civil Rights Act of 1866 bans racial discrimination in housing by private owners as well as governments; Swann v. Charlotte-Mecklenburg Board of Education (1971), holding that busing is an appropriate legal method to address illegal segregation in public schools; and Griggs v. Duke Power Co. (1971), holding that Title VII of the Civil Rights Act of 1964 prohibited not only intentional job discrimination, but also employer practices that had a discriminatory effect on minorities and women President Lyndon Johnson worked with Congress and civil rights leaders to gain passage of the Civil Rights Act of 1964—referred to by one commentator as “the bill of the century”—and the Voting Rights Act of 1965. The Supreme Court upheld the Civil Rights Act of 1964 as a valid exercise of congressional power in Atlanta Motel, Inc. v. U.S. (1964) and Katzenbach v. McClung (1964) These laws enabled Black Americans and ultimately all Americans to enjoy a more equal participation in American democracy and society.
W.E.B. Du Bois was right. The twentieth century was marked by the struggle of the color-line. And this struggle was made possible by the commitment of the federal government, to enact and enforce laws to promote racial equality. In fact, every period of progress for African Americans—from the Civil War, which ended slavery, through Reconstruction, and then the civil rights movement—occurred when the federal government was seen as a powerful instrument of positive change. People looked to the Executive branch, the Congress and the federal courts to make the dream of equality for all a reality. Against this backdrop of societal commitment in the mid to late twentieth century to redress wrongs of the past, we look at the level of commitment and activity on these issues today. Much was accomplished, but much remains to be done. Is there still the will in the 21st century to address these issues?
On January 20, 2009, Barack Obama was inaugurated as the first President of the United States of African and American descent. That such an event would happen less than 50 years after the passage of the Civil Rights Act would have been unimaginable in 1964. There was a sense among many of the Americans who voted for President Obama that by his election the promise of equality had been made real; that race would no longer be the defining fault line in American society. America, it was believed, had at last become a “race-free society,” in which race would play no, or an insignificant, role in how people are viewed and evaluated, hired and promoted, or stopped and arrested by the police.
One factor that gave credence to such a hope was that the United States in the twenty-first century is a much more diverse society than ever been before, home to millions of immigrants from Latin America, Asia, North Africa and the Middle East. The very word diversity, as applied to race in American society, is now much more inclusive than it had ever been. Laws intended initially to protect the civil rights of Black Americans now protect the civil rights of a much larger community of interests.
But, sadly, the 2008 election and the rise in diversity in twenty-first century America have not meant that the country is yet a race-free society. And the federal government has reflected a society conflicted on how to address the problems that remain. Three factors have contributed to this.
First, the unprecedented impasse between Congress and President Obama, the rise of radical conservatives in Congress, and an increasingly ideologically conservative Supreme Court have meant that the progress of the mid-twentieth century has seemed less a harbinger of even greater progress to come than a high watermark of socially responsible legislation, executive orders, and judicial decisions that now must be defended against erosion by hostile courts and the Congress.
Second, for some Americans, President Obama’s election did not represent a hope, but embodied a fear that their America was being taken over by the “others” in society. And because President Obama is such a singular individual, with a name, education, and demeanor unlike that of others many white people in America have ever met, some felt free to attack him and his policies without restraint, even when he proposed policies, such as affordable health care for all, that were previously endorsed by Republicans.
The hope that President Obama’s election would bring Americans together in a new spirit of conciliation and cooperation proved illusory. Instead, the country today seems more divided along ideological and racial lines than it has in a very long time. And such divisions have been exacerbated by the tragic deaths at the hands of law enforcement officers of so many young Black Americans and women in these early years of the twenty-first century, giving rise to the Black Lives Matter movement and reminding some of us of the struggles over police brutality and community policing in the 1960s and 1970s. The civil rights consensus that emerged in this country across party lines in the 1960s seems to have broken down.
Third, we see today a Jeffersonian reaction by many Americans to the “big” government of the late twentieth century, with calls for dramatically lower taxes and concomitant reductions in federal government programs and presence in society. If President Franklin Roosevelt’s New Deal and the needs of World War II ushered in an era of big government not seen in relative terms since the Civil War, President Ronald Reagan was the ideological father of a return to another theme in American political history, that the federal government should have as small a footprint as possible and impose on its citizen as limited a set of regulations as possible.
This theme is reflected in the current majority on the Supreme Court, which appears skeptical of claims that some civil rights laws are still necessary. Thus, in Shelby County v. Holder (2013), the Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act. The Supreme Court did not rule on the constitutionality of Section 5 itself. The effect of the Shelby County decision is that the jurisdictions identified by the coverage formula in Section 4(b) are no longer required to seek preclearance for new voting changes unless they are covered by a separate court order entered under Section 3(c) of the Voting Rights Act.
Unfortunately, the need for preclearance still exists. Within a year of the Shelby County decision, Texas, North Carolina, Mississippi, and Alabama, moved to enact and implement voter ID laws that previously would have been blocked by Title 5 scrutiny under the Voting Rights Act. Other states—including Florida, Virginia, and Arizona—have also sought to adopt such policies.
Affirmative action policies also continue to face an uphill struggle in the twenty-first century. The Supreme Court recently reaffirmed the need for courts to apply a strict scrutiny test to state affirmative action policies in undergraduate admissions at public universities, Fisher v. University of Texas (2013), and has upheld a Michigan state constitutional amendment banning universities from considering race in their admissions decisions, Schuette v. Coalition to Defend Affirmative Action (2014). In immigration policy, the Supreme Court has also agreed to hear challenges brought by some states to executive orders issued by President Obama that would prevent the deportation of up to 5 million immigrants who entered the country illegally as children or who have children who are American citizens.
The pushback in the twenty-first century against progressive policies is taking place among the states as well. In 2015 conservatives controlled both houses of the legislature in 30 of the 50 states and hold the governor’s office in 34 of the 50 states.
Where do we go from here? There are three issues worth noting.
First, in the 1950s, 60s and 70s, African-Americans and other minorities looked to the federal courts to enforce constitutional guarantees of equal protection and due process and the civil rights laws passed by Congress. For many Americans who came of age during that time, the federal courts were seen as a progressive force for positive change in both civil and criminal law. That has changed. The Warren Court was an anomaly. For most of American history the federal courts were seen as pro-business and pro-defendant, not easily accessible or hospitable to individual or class action plaintiffs or criminal defendants. Now, in the first two decades of the 21s century, we see a return to this historic norm in the decisions of conservative majorities on the Supreme Court and on many of the U.S. courts of appeals. Even the Federal Rules of Civil Procedure—amended in 1968 to make it easier for civil rights plaintiffs to bring class action lawsuits—have been amended many times since 2000 to make it more difficult for plaintiffs to obtain discovery and bring certain claims. Today, the Supreme Court seems poised to end any remnants of affirmative action admission policies at public universities. Yet, in some areas the current Supreme Court has been a progressive force for change, as in United States v. Windsor (2013) when it struck down Section 3 of the Defense of Marriage Act as a violation of the Fifth Amendment, and Obergefell v. Hodges (2015), which struck down state bans on same sex marriages, and, in the context of racial discrimination, in Texas Dept. of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (2015), which held this disparate impact claims are available under the Fair Housing Act, thus allowing plaintiffs to challenge housing laws and their implementation that have a discriminatory effect without having to prove an intent to discriminate. The federal courts will continue to be a forum in which many civil rights claims must be brought and decided, but perhaps with less of the optimism that marked civil rights ligation of the 1960s and 70s.
Given the absence of a national consensus on civil rights, we are unlikely to see significant civil rights legislation passed by the Congress in the near future, or for Congress to take up the Supreme Court’s invitation in the Shelby County case to adopt a renewed preclearance policy under the Voting Rights Act. On the other hand, the urgent need for immigration reform may make it possible for a new Congress and a new president to work together to pass immigration reform legislation sometime after the 2016 election.
Second, the “Black Lives Matter” movement, anger over the shooting deaths of unarmed Black Americans, and the strained relationships between police departments and African-American communities across the country, will continue to reverberate. The lessons in community policing that many thought had been learned and applied after the urban riots of the 1960s, will need to be relearned and reapplied. We also can expect that the young men and women who are the leaders of this movement will expand their reach to push for changes in other areas of American life and the law, and emerge as leaders of a new civil rights movement later in this century.
Finally, we must acknowledge that the riddle of race in our American society has not been solved. While racial differences in popular culture—as in television advertisements and programing—seem far less important and almost incidental to the product being sold or the plot being dramatized, race remains a potent force in American politics. And yet, for all of that, we must not forget that Barack Obama was twice elected President of the United States and on both occasions by comfortable margins. Americans wanted change. To be proud of our different cultural, ethnic and racial heritages without having those differences be a source of conflict or discrimination is a goal that most Americans share. How to achieve this goal is a riddle that we as a nation are still trying to solve.
As lawyers we have a special obligation to address these issues. We need to actively engage with others on these issues in coalitions at the local, state, and national level because as the very first paragraph of the Preamble to the ABA Model Rules of Professional Conduct reminds us: “A lawyer . . . [is] a public citizen having special responsibility for the quality of justice.”
America remains a unique quilt of ethnic and racial diversity. From this we derive much of our strength as a nation. We must build on that strength to promote and protect the civil rights and social justice that all Americans deserve.