The Supreme Court, supposedly sheltered from the brute forces of political power, is for many liberals a barometer for moral integrity that offers a vision of “universal harmony and justice brought about by reason and persuasion.” However, over the past few months of national reckoning and re-examining of American institutions, the Court has come under fire for perpetuating patterns of state-sanctioned racism that have shaped U.S. history for centuries. Throughout its long history, the Court has advanced progress in fits and starts, and has repeatedly retreated from conferring equal rights and dignity to all individuals. Amy Coney Barrett, Trump’s judicial nominee and a staunch defender of originalism, threatens to petrify any potential for expanding minority rights.
On the morning of March 31, 1968, Dr. Martin Luther King Jr. rose to the pulpit of the Washington National Cathedral and, drawing on the allegory of Rip Van Winkle, told of a man who fell asleep before 1776 and awoke twenty years later to unfamiliar customs and clothes, a new blueprint for language, and a portrait of George Washington instead of King George III. In an appeal that extended beyond the more than three thousand people who spilled out onto the pavement and into the nearby parish, Dr. King warned the nation that “while [Van Winkle] was peacefully snoring up in the mountain, a revolution was taking place that at points would change the course of history, and Rip knew nothing about it.”
Dr. King was condemning the regrettable failure of people who found “themselves living amid a great period of social change” to “develop the new attitudes, the new mental responses, that the new situation demand[ed].” Pushing back against the laissez-faire belief that justice and equality would come if just given time, he argued that human progress “never rolls in on the wheels of inevitability. It comes through the tireless efforts and the persistent work of dedicated individuals.”
For many liberals, the fulcrum of incremental human progress is American jurisprudence. An impartial thermometer, the Court is granted the broad latitude to prescribe—or proscribe—laws that are created in decentralized, fragmented state laboratories in a trickle-up/trickle-down effect. The Constitution is silent on judicial review. It was Chief Justice John Marshall who, in 1803, established that the interpretation of the laws is the “proper and peculiar province of the courts,” an especially weighty job given that the pedigree and motivations of legislation have, since the nation’s inception, been forged within broader state-backed, racialized ideologies.
Sitting atop their perch in Washington, D.C., issuing decrees like gods from Mount Olympus, judges are conceived to be the least accountable to the American public, isolated from the whims of the common man. Still, the Supreme Court has often been the bottleneck to more expansive visions of human rights, bowing to the predominant winds of prejudiced public opinion and political pressure. In liminal moments in African American history, opportunities to recode and renegotiate webs of laws, regulations, and informal rules have been accompanied by a retrograde Court which has often abridged or eroded the rights of people of color.
In a case nested amid what had been—and what would contribute to —a long history of prolonged and embittered federal and state resistance to protecting the rights and economic security of people of color, the Court ruled in Dred Scott v. Sandford (1857) that African Americans “whose ancestors were imported into this country and sold as slaves” were not “entitled to all the rights, and privileges, and immunities” guaranteed in the Constitution. Writing for the Court, Chief Justice Roger Taney relied on the socio-historical underpinnings of the nation, arguing that African Americans had “for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations,” and were “so far inferior that they had no rights which the white man was bound to respect.” Only after civil war and Reconstruction was Dred Scott reversed and the Civil Rights Act of 1866 forged, which guaranteed to blacks all the same rights conferred to whites.
With an eye toward a more free and equal country following the Civil Rights Act of 1866, Congress ratified the Fourteenth Amendment (1868), which constitutionalized the principles of birthright citizenship and equality before the law. In combination with the Thirteenth Amendment (1865), which abolished slavery, and the Fifteenth Amendment (1870), which sought to guarantee the right to vote for black men throughout the reunited nation, all three empowered Congress to enforce their provisions, shifting responsibility and power from the states to the nation. These changes were “so profound,” according to historian Eric Foner, that “the amendments could be seen as a ‘second founding,’ a ‘constitutional revolution,’ in the words of Republican leader Carl Schurz, that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.”
However, each amendment provoked scrutiny: did the Thirteenth Amendment prohibit only chattel bondage, or did it extend to vestiges of slavery? Did the Fourteenth shield Americans against violations of their rights only by state laws and officials, or did it also protect against the acts of private individuals? Did the Fifteenth prohibit laws that, even if race-neutral on their surface, were intended to limit black men’s right to vote? The task of definition fell to the Supreme Court. Within a generation of the passage of these amendments, the Supreme Court ignored the amendments’ expansive potential to protect the rights of newly freed blacks and afford them the privileges and protections of U.S. citizenship.
Writing in the magazine Science, lawyer and political philosopher Thaddeus B. Wakeman reflected in 1890 that too many constitutional rights died a premature death when they reached the “grave of liberty, the Supreme Court of the United States.” In 1883, with the carrion breath of slavery still clinging to the air, the Supreme Court heard five cases that tested the constitutionality of the Civil Rights Act of 1875, which prohibited discrimination in hotels, trains, other public accommodations, and “places of public amusement.” In an 8-1 decision, the Court narrowly interpreted the Fourteenth Amendment as applicable only to states, arguing that it was within the purview of business owners to ban blacks from public accommodations. Regarding the Thirteenth Amendment, the Court held that the amendment’s purpose was fulfilled when chattel slavery vanished and rejected claims that various forms of racial inequality that persisted—what they called “ordinary civil injuries”—amounted to “badges of slavery” against which Congress could legislate. Additionally, they argued that the law now—supposedly—conferred rights equally, so former slaves were to be considered normal citizens, rather than a “special group” favored by the law; “There must be some stage in the process of his elevation when he takes on the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.” This superficial, abbreviated analysis deliberately ignored that most “other men” had not been enslaved, exploited and weaponized to foment the hostility of working-class whites, dispossessed of land, nor subjected to daily violence and harassment and cultural erasure. Following the civil rights cases, the Court’s ruling in Plessy v. Ferguson (1896) codified and nationalized the “separate but equal” doctrine of Jim Crow: legalized racial apartheid.
“The brutality with which Negroes are treated in this country simply cannot be overstated, however unwilling white men may be able to hear it.”-James Baldwin, The Fire Next Time
The Warren Court (1953-1969), which dismantled the legal edifice of Jim Crow, is an exception in the Court’s history of conservatism. However, some of the Warren Court’s decisions that are today celebrated for defending blacks’ freedoms were often aimed at reversing problems the Court itself had created, like Brown v. Board of Education (1954), which undid precedent established in Plessy by banning segregation in public education. Brown was situated amidst intense geopolitical pressure of the Cold War; vestiges of slavery undermined the United States’ stance as a democratic lodestar in the global theater. The Truman Administration articulated this tension in a 1952 amicus brief, which stated plainly that the United States was “trying to prove to the people of the world of every nationality, race, and color, that a free democracy is the most civilized and most secure form of government yet devised by man…the existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills.” Although Brown was a litmus test of progress, the Court regressed when it subsequently administered that school desegregation be undertaken with “all deliberate speed,” a phrase which opened the door to Southern tactics that circumvented and resisted desegregation.
Gideon v. Wainwright (1963) was another notable decision under the Warren Court that expanded freedom, a watershed moment in criminal procedure that guaranteed under the Sixth Amendment the right to counsel in all criminal prosecutions and made obligatory to the states under the Fourteenth Amendment. Although Michelle Alexander makes a special note in The New Jim Crow: Mass Incarceration in the Age of Colorblindness that while this case entitled poor people accused of serious crimes to counsel, it granted the state and local governments the broad latitude to decide how legal services were to be funded. As a result, she notes that nearly all criminal cases are resolved through plea bargaining before going to trial or end in mandatory minimum sentencing. A few years later, the Court declared in Jones v. Alfred H. Mayer Co. (1968) that public or private housing discrimination was a “badge and incident” of slavery under the Thirteenth Amendment and the Civil Rights Act of 1866. Writing for the majority, Justice Potter Stewart compared racial discrimination in housing to the “Black Codes” enacted at the end of the Civil War: “When racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”
But, like a pendulum, the Court swung right under Chief Justice Burger. Following Jones, the Burger Court addressed in Milliken v. Bradley (1974) whether Detroit suburbs were required to include black children from the city in a metropolitan-area-wide school-desegregation plan. The plaintiffs argued that black parents had been contained by de jure racist housing policies, legalized under Buchanan v. Warley (1917), which involved William Warley’s attempt as a black man to purchase property on an integrated block where there were already two black and eight white households. In The Color of Law, Richard Rothstein describes a Court that had long been “enamored of the idea that the central purpose of the Fourteenth Amendment was not to protect the rights of freed slaves but a business rule: ‘freedom of contract.’” The Court weaponized this interpretation to strike down minimum wage and workplace safety laws that “interfered with the right of workers and business owners to negotiate individual employment conditions without government interference.” Applying this logic in Buchanan, the Court held that racial zoning ordinances interfered with the right of a property owner to sell to whomever he pleased.
The implications of Buchanan were profound: racist housing policies and zoning ordinances meant that many black children were districted to underfunded, low-resource schools. In Milliken, the plaintiffs noted these state-backed patterns of segregation and pointed to the state’s injection of money into new suburban schools that were built behind ossified district lines. In response, the suburbs argued that their school district lines had been drawn without malice and that it was outside the federal courts’ constitutional ambit to interfere in the local control of schools unless the plaintiffs could prove that the suburbs were responsible for the segregated, dual-school system in Detroit. A lower court judge ruled that desegregating Detroit would require the state to dismantle those lines by bussing students between the city and fifty-three suburban school districts.
Eventually, Milliken made its way to the Supreme Court. In an opinion that crystallized the Court’s enormous discretionary power to choose which precedent to apply, Burger deliberately disregarded Jones, which described the existence of segregation and linked origins to state action and private discrimination. Instead, Burger argued that racial segregation in Detroit was “caused by unknown and perhaps unknowable factors”; that there was no evidence that “governmental activity” had played any role in the “residential patterns within Detroit.” According to Burger, if the suburbs were not actively hurting Detroit’s students, then they could not be forced to help them either. In essence, Detroit was told to desegregate itself. In a blistering dissent, Justice Thurgood Marshall called the Milliken ruling a “giant step backward.” According to Marshall, Detroit had “simply no hope of achieving actual desegregation…White and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown was aimed at will not be cured but will be perpetuated.” Marshall knew that because schools are funded through local property taxes, these segregated big-city schools were not merely separate but were also clearly unequal. “Our nation, I fear, will be ill-served by the court’s refusal to remedy separate and unequal education,” Marshall warned, “for unless our children begin to learn together, there is little hope that our people will ever learn to live together and understand each other.” In a similarly brutal telling of the decision, Michelle Adams, professor at Cardozo School of Law in New York City, called Milliken another chapter in “the story of American apartheid.”
Trump’s right-wing nominee, Amy Coney Barrett, is poised to shape a new generation of American law. Conservatives have presented her as anodyne, relying on her appeal as a woman and the mother of black children. However, if appointed, she will erode the Court’s sanctity and legitimacy. A former clerk under Scalia, Amy Coney Barrett is a staunch proponent of originalism. She relies on the specific meaning of the words in statutes, not on legislators’ intent, and interprets the Constitution according to her belief in what the words meant when the document was ratified, not what they mean now. The problem with this framework of interpretation? It is contradictory and self-serving. Originalism is, as Senator Angus King argued in an op-ed for The Atlantic this past weekend, an “intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public.” And, the “intellectual dishonesty of many originalists is exposed by their reluctance to follow their own logic regarding certain landmark cases, now widely recognized as milestones in our national progress toward ‘a more perfect union.’” Senator King offers two examples—Brown v. Board of Education and Loving v. Virginia, both of which Barrett thought were correctly decided and said belonged to the category of judicial rulings known as “super-precedents,” decisions that an article in The Washington Post describes as “so fundamental that they cannot be overturned.” King called Barrett’s endorsement of these cases’ outcomes a “convenient dodge that evades the troubling implications of [Barrett’s] supposedly simple theory of constitutional interpretation.” (Notably, she doesn’t consider Roe v. Wade a super-precedent.) Senator King’s rejection of originalism is not new. Early in the nineteenth century, Chief Justice John Marshall wrote that “we must never forget that it is a Constitution we are expounding; [a Constitution] meant to be adapted and endure for ages to come”; that is, as Senator King envisions, a “sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.”
While interpretational classifications of the Constitution like “originalism” and “judicial pragmatism” ignore that a justice can subscribe to a system but still contradict and subvert it, Barrett’s membership to a conservative organization within the Catholic Church and her legal writings suggest her strict adherence to originalist doctrine. What this means in practice is her likely role in overturning Roe v. Wade, a case that struck down anti-abortion legislation not on the ground of equal protection but on the right to privacy. (Ruth Bader Ginsburg regretted the Court’s logic and did not think Roe would survive re-examination. In short order, history will know if she was right.)
Additionally, Barrett will most likely take a position that restricts the rights of people of color. In her Senate Judiciary Committee confirmation hearing, Cory Booker asked Barrett about a study by the U.S. Sentencing Commission, discussing the profound racism exercised against Black Americans who enter the criminal justice system: “You said you were not familiar with that particular study, as you just reaffirmed, or the facts that they cite in this study showing that interracial bias is present in our system.” Booker was slowly and deliberately laying the groundwork for a troubling admission. Acknowledging that he believed Barrett understood that racism exists and that judges have played a crucial role in correcting for racial inequalities, he continued, “I understand that you weren’t aware of specific studies I cited, which are central to the important work of the U.S. Sentencing Commission, which advises federal judges or provides recommendations to federal judges. So I just want to give you an opportunity today to share what studies, articles, books, law review articles, or commentary you have read regarding racial disparities present in our criminal justice system.”
Barrett’s response bookends months of political and civil upheaval. Given the circumstances and exigencies of our time, she revealed a dangerous and discriminatory ignorance made all the more acute given the fact that she has two adopted black children; “Well, Sen. Booker, I will say what I have learned about it has mostly been in conversations with people, and at Notre Dame as at many other universities. It’s a topic of conversation in classrooms, but it’s not something that I can say, yes, I’ve done research on this and read X, Y, and Z.” Her moderate and restrained approach has been, and continues to be, shared by many justices. Even the late Ruth Bader Ginsburg, Marshall’s living ideological descendent, who has said that protecting the equal dignity of individuals is not an abstraction and was part of her legacy, and who cited in My Own Words earlier Supreme Court Justice CJ Hughes, who wrote in 1936 that a “dissent in a court of last resort is an…appeal to the intelligence of a future day.” Yet in her own Senate confirmation hearing, Ginsburg acknowledged that judges should avoid stepping boldly in front of the political process. In a slow and measured cadence, Ginsburg offered what Harvard historian Jill Lepore describes as a “short sermon about reticence”: “We cherish living in a democracy, and we also know that this Constitution did not create a tricameral system. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.” But often reticence translates into complacent doctrinal analysis that excises race and, as a result, offloads the intentional work necessary to examine the ways states continue to reproduce the basic architecture of slavery and Jim Crow, something the current Roberts Court was guilty of in Shelby County v. Holder (2013). This case held that civil-rights protections were no longer necessary because “nearly 50 years later, things have changed dramatically.” Subsequently, states across the South implemented new voting restrictions like requiring voters to present photo identification and closing Department of Motor Vehicles offices, which disproportionately affected African Americans. The Supreme Court, therefore, continues to be an institution infected with racial bias that protects the psychologies of those who believe the march for equality and freedom is no longer urgent or necessary, something Amy Coney Barrett threatens to perpetuate because the Constitution is “not self-enforcing” and progress is almost never “linear, guaranteed or permanent,” in the words of Eric Foner. What will be the antidote to a system riddled with inequity?
America “woke up” from a slumber akin to Rip Van Winkle’s in the aftermath of several black deaths at the hands of police. Though the time is always ripe for justice, the country is uniquely positioned to continue the momentum behind this cultural seismology of uprisings and social movements; to locate other avenues of change on the periphery or outside of our political institutions, policies, and practices, which have suppressed and silenced radicalization and have continued to reproduce racial and economic inequalities.
Martin Luther King Jr., on that morning in early spring of 1968, was speaking to a cathedral of voters, empowered by the ballot to shape their political habitat and the federal judiciary. In a eulogy to humanity’s potential for good, Dr. King declared that “we shall overcome because the arc of the moral universe is long, but it bends toward justice.” This bend requires a flow of action, however incremental it may be, in order to thaw what has become a gelid lake of convention. Today, we still have unfinished work in the sphere of human rights, of protecting the equal dignity of all individuals. Taking Dr. King’s directive, we can continue this reckoning with the presidential election in November.