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Litigation Journal

Summer 2022 | Experience Black

A Long Judicial Winter

Kenneth R Berman


  • The road to racial justice that runs through the Supreme Court has hardly been smooth.
  • The Court might look at whether it too has some remedial work to do.
  • Otherwise, our stones of hope will need to sustain us until this current judicial winter once again turns to spring.
A Long Judicial Winter

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In 1790, George Washington wrote that the government of the United States “gives to bigotry no sanction, to persecution no assistance.” Lofty words. In that moment, America fell short of the idealized version the words described. They did not embrace, for example, the slaves on Washington’s own plantation or elsewhere.

In a larger sense, though, those words evoked a vision of what America should be and what most are taught to believe America is all about. No wonder, then, that Martin Luther King Jr. in 1957 spoke eloquently about the codependence of civil rights and voting rights: “Give us the ballot, and we will no longer have to worry the federal government about our basic rights. Give us the ballot, and we will no longer plead to the federal government for passage of an anti-lynching law; we will by the power of our vote write the law on the statute books of the South and bring an end to the dastardly acts of the hooded perpetrators of violence.”

Without naming the case, King talked about Brown v. Board of Education:

Three years ago the Supreme Court . . . rendered in simple, eloquent, and unequivocal language a decision which . . . came as a joyous daybreak to end the long night of human captivity. It came as a great beacon light of hope to millions of disinherited people throughout the world who had dared only to dream of freedom.

King was right to nod to the Supreme Court. As civil rights and voting rights—siblings on the journey to racial justice—flow through the plumbing of government, the Supreme Court has been the hand that opens the tap or shuts it down. These days, can we be optimistic about how the Court is turning the tap?

Consider, for example, Rucho v. Common Cause (2019), in which the five Republican-appointed justices, overruling a 1986 case, held that constitutional challenges to partisan gerrymandering presented no justiciable controversy, only political questions that cannot be reviewed in federal courts.

Think about that. Post-Rucho, state legislators in the dominant party can, in violation of the Constitution, intentionally gerrymander voting districts to ensure their own reelection and the election of others from their party. Because Rucho stopped federal courts from reviewing constitutional challenges to partisan-gerrymandered districts, the disaffected voters would need to elect different legislators to redraw those districts, an impossible catch-22 if the gerrymandering has ensured the reelection of the incumbents or of successors with similar leanings.

“Voting, and the ability to participate in democracy, is a racial justice issue. It is a civil rights issue,” says the Leadership Conference on Civil and Human Rights. But the Supreme Court has too often given racial justice a rough time.

The Court’s darkest moment was when it held in Dred Scott v. Sanford (1856) that constitutional rights and privileges did not apply to people of African descent, whether free or enslaved.

The Civil War followed. So did three constitutional amendments, all of which gave Congress the legislative power to enforce them: the Thirteenth, abolishing slavery; the Fourteenth, overruling Dred Scott and granting citizenship and equal protection of the laws to all persons born or naturalized in the United States; and the Fifteenth, guaranteeing all citizens the right to vote, regardless of race, color, or previous servitude.

Supreme Court Opposition

But the 19th-century Supreme Court did not always breathe life into those amendments or into the enforcing legislation. Quite the opposite.

Take United States v. Reese (1876), for instance. The case challenged a federal statute that made it a crime for state and local voting officials to impose conditions on a Black person’s right to vote or to block Black voters from complying with those conditions if white voters were not so encumbered. In an 8–1 ruling, the Court interpreted the statute as exceeding Congress’s authority because the section of the statute that created the penalty used the word “aforesaid” to refer to the racially discriminatory conduct described in earlier parts of the statute, rather than spelling it out again and tracking the words of the Fifteenth Amendment. By then, political sentiment in Congress had shifted, so Congress never fixed the statute. That led to literacy tests, poll taxes, whites-only primaries, grandfather clauses, jelly-bean counting, and other pervasive practices in former slave states that kept Blacks from voting for decades.

Now look at the Civil Rights Cases (1883), five cases testing the constitutionality of the Civil Rights Act of 1875, which made it a federal crime to deny any person “full and equal” access to “inns, public conveyances . . . , theaters, and other places of public amusement,” except under laws “applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” The statute affirmed the “equality of all men before the law.”

The Court held the act unconstitutional, reasoning that under the Thirteenth and Fourteenth Amendments Congress could enact laws only to neuter state laws that diminished rights protected by those amendments. Justice Harlan, the lone dissenter, astutely noted that Congress had no need to enact neutering laws because courts could neuter under the Thirteenth and Fourteenth Amendments directly.

In Harlan’s view, the 1875 act was exactly what those amendments had authorized. But Harlan was the only justice on the right side of history. Thus, for generations, segregation and discrimination flourished on trains, buses, and streetcars, in theaters and hotels, and at public establishments in large sections of the country.

Then Plessy v. Ferguson (1896) famously upheld a Louisiana statute requiring separate train cars for whites and Blacks. Justice Harlan, again the lone dissenter, argued that in “civil rights, all citizens are equal before the law.” But the majority said that the Fourteenth Amendment was not intended to abolish distinctions based on color or to enforce social equality or commingling of the two races.

For Black Americans, those cases and others like them made the last half of the 19th century a long judicial winter.

Decisions in the 20th Century

The first part of the 20th century had some thawing, though it started out frosty. In James v. Bowman (1903), the Court held that the Fifteenth Amendment did not allow Congress to criminalize non-state actors who with bribes or threats hindered Blacks from voting. And the Court held, in Giles v. Harris (1903), that the Fifteenth Amendment did not bar a provision in the Alabama Constitution under which voting officials arbitrarily refused to register Black voters. Oliver Wendell Holmes, for the majority, wrote that the Court was powerless to give relief because, at most, it could require only that the plaintiff’s name be listed on the voting rolls, which could not defeat “the great mass of the white population [that] intends to keep the blacks from voting.”

Then came a judicial spring, of sorts. In Guinn v. United States (1903), the Court nixed Oklahoma’s grandfather clause, which conditioned the right to vote on passing a literacy test, exempting the lineal descendants of those who had the right to vote on January 1, 1866. Until the Court’s decision, that clause had effectively allowed voting officials to screen out Blacks and let in whites. And in Nixon v. Herndon (1927), the Court invalidated a Texas law that barred Blacks from voting in Democratic Party primaries.

In areas beyond voting, the Court in Buchanan v. Warley (1917) struck down a Kentucky ordinance that barred Blacks from moving into houses on blocks that were predominantly white. Then, in Norris v. Alabama (1935), the Court stopped Alabama’s practice of excluding Blacks from juries. And in a precursor to Brown v. Board of Education, the Court in State of Missouri ex rel. Gaines v. Canada (1938) held that Missouri could no longer maintain separate state law schools, one for white students and the other for Blacks.

By the second half of the 20th century, the Court entered into a comparatively glorious summer. Brown v. Board of Education (1954) made it unlawful to have racially segregated public schools, although the “due deliberate speed” sentence regrettably diminished its effect. Edwards v. South Carolina (1963) protected Black citizens from prosecution for gathering publicly and protesting peacefully against racial discrimination.

In Heart of Atlanta Motel, Inc. v. United States (1964), the Court used the Commerce Clause to uphold the Civil Rights Act of 1964, a statute that outlawed even more discriminatory conduct than did its forebear—the Civil Rights Act of 1875, which in the previous century the Court had held unconstitutional.

In Loving v. Virginia (1967), the Court invalidated laws prohibiting interracial marriage. In Oregon v. Mitchell (1970), the Court finally outlawed literacy tests that had been used for generations in many Southern states to exclude Blacks from voting. In Runyon v. McCrary (1976), the Court held that 42 U.S.C. § 1981 prohibits racial discrimination in making and enforcing private contracts. In Regents of the University of California v. Bakke (1978), the Court held that race may be considered in university admissions programs to promote the “compelling” interest of diversifying the student body.

As more politically conservative justices joined the Court after 1980, the racial justice summer turned to autumn. In City of Richmond v. J.A. Croson Co. (1989), the Court overturned a city’s minority set-aside program designed to remedy past discrimination in construction contracting. In Shaw v. Reno (1993), the Court invalidated a remedial redistricting plan that was intended to enlarge a state’s minority representation in Congress to reflect more accurately the percentage of racial minorities in the state.

And in Adarand Constructors, Inc. v. Pena (1995), the Court held that affirmative action by the government to benefit disadvantaged racial minorities must pass strict scrutiny. That is, remedial race-based governmental action is unlawful under the Fourteenth Amendment unless “narrowly tailored” to “further compelling governmental interests.” In dissent, Justice Stevens noted that the Fourteenth Amendment was itself remedial and authorized Congress to pass remedial laws to equalize the imbalance created by a history of racial discrimination.

Commenting on that latter part of the 20th century, law professor David Kairys noted that almost all the winning plaintiffs in racial equal protection cases in the Supreme Court were white and had complained about reverse discrimination. According to Kairys, the Court invalidated affirmative action and other remedial efforts dealing with past discrimination as if they were the constitutional equivalent of white-imposed segregation and discrimination.

Recent Court Decisions

So, for civil rights and racial justice, what season are we in now? What does recent jurisprudence tell us about that?

Well, there’s Parents Involved in Community Schools v. Seattle School District (2007), in which the conservative majority (three are still on the Court) held that a race-based school integration plan violates the Fourteenth Amendment, just as would a race-based segregation plan.

And in Shelby County v. Holder (2013), a 5–4 decision along ideological lines, the conservative justices invalidated the keystone section of the 1965 Voting Rights Act that determined which states need federal preclearance to change their voting laws. The invalidated section targeted states where laws historically diluted the votes of minority voters or denied those voters equal poll access. The invalidation of that section effectively defanged the act, ushering in a wave of new state laws that, although facially neutral, disproportionately burden Black voters.

Might there also be some clues in Trump v. Hawaii (2018)? There, in another 5–4 decision along ideological lines, the conservative justices upheld President Trump’s executive order barring, ostensibly on national security grounds, citizens of six majority-Muslim countries from entering the United States. Though it was not a racial justice case per se, the administration had offered scant evidence of the asserted national security interests, while the majority was unmoved by abundant evidence that the order was motivated by religious stereotypes and animus.

The current tenor of cases affecting historically disadvantaged minorities, and the thinning of the liberal wing on the Court, suggests that a judicial winter is here again and not leaving anytime soon.

Shortly after Dr. King’s August 1963 March on Washington, Rabbi Robert Goldburg, a colleague in the civil rights movement, delivered a Rosh Hashanah sermon about the moral imperative of joining what he termed the “Negro revolution”—the peaceful but strenuous and determined revolt, led by MLK, against racial bigotry, violence, and discrimination. Goldburg noted with sadness that “court decisions alone brought token integration, at best,” and that Brown v. Board of Education “outlaw[ed] segregation but obviously not successfully. . . . Had the Negro people relied solely on the courts and on token integration, their economic plight would have sunk lower each year and their equality would [never be] achieved.”

Equating the fight for racial justice with “the idea and aspiration of America itself,” Goldburg noted that the “Negro people are in the process of claiming the humanity that was always theirs,” which white Americans had denied them. He called to “unite with our Negro brothers in the struggle for justice” so that “we together will be able to hew—out of the mountains of despair—a stone of hope.”

For nearly 20 years after Goldburg’s sermon, racial justice had a decent run in the Supreme Court. When seeking to correct racial injustices, Court cases in the ’60s and ’70s approved affirmative action to remedy effects of past discrimination. Even in 2003, Justice O’Connor wrote for the majority in Grutter v. Bollinger that governments have a compelling interest in taking affirmative steps to remedy past discrimination and promote diversity.

But taking affirmative steps to purge the legacy, and remedy the effects, of past discrimination is not just a compelling interest. It’s the American promise. As Washington wrote, our government is to give bigotry no sanction and persecution no assistance. Sadly, in the 21st century, this is still a work in progress.

If one were crafting, on a post–Dred Scott clean slate, a legal architecture to restore to Black Americans the humanity that was always theirs, it’s hard to think of a better suite of basic tools than the Thirteenth, Fourteenth, and Fifteenth Amendments; the Civil Rights Act of 1875; the Civil Rights Act of 1964; and the Voting Rights Act of 1965.

So what kept those tools from effectively doing that? History suggests it was a patchwork of Supreme Court decisions in which the plea for racial justice fell to judicial indifference, resistance, or opposition; decisions that, in small strokes or large, made those tools harder, and sometimes impossible, to use.

The road to racial justice that runs through the Supreme Court has hardly been smooth. When the next racial justice case comes to the Supreme Court, perhaps the Court might look at whether it too has some remedial work to do. Otherwise, our stones of hope will need to sustain us until this current judicial winter once again turns to spring, maybe in a generation or two, if we can somehow keep our democracy intact.