How the U.S. Supreme Court Could Improve Racial Equality in America
WHY YOU SHOULD CARE
Because the highest court in the land could be doing a lot more to address racial equality.
By Sean Braswell
- Was the top court’s decision declaring that almost half of Oklahoma belongs to Native Americans a one-off? Or will we see a court more active in healing the country’s racial divisions?
- The Supreme Court has already handed down several key rulings in recent days, from birth control to President Trump’s tax records.
The U.S. Supreme Court has been busy. In recent weeks, the highest court in America has handed down a variety of rulings, on issues from birth control to religious education, and from LGBT rights to President Donald Trump’s tax returns. But for years, including this recent term, the court has largely avoided addressing the all-important issues of racism and discrimination in American society and the criminal justice system.
It took one major step toward changing that track record with its decision on Thursday stating that almost half of Oklahoma belongs to a Native American reservation. But was that a one-off ruling? As the issue of racial equality boils over in the streets of the country this summer, what more could we hope from the Supreme Court in helping heal the divisions that still define America?
The typical Supreme Court docket is comprised of about one-third criminal justice cases, but as law professors Tonja Jacobi and Ross Berlin argue in a recent article in the UC Davis Law Review, the court routinely avoids challenges to key issues like discriminatory police stop-and-frisks and racially disproportionate sentencing. For example, despite evidence that police disproportionately detain racial minorities (one lower court found that 91 percent of the New York Police Department’s stops were of nonwhites, even though they make up 57 percent of the city’s population), the court continues to allow police to justify such stops on vague, race-neutral facts like a “high-crime neighborhood.”
The qualified immunity doctrine is absurd.
Mark Kende, constitutional law professor
Discriminatory police conduct is also often shielded by the doctrine of qualified immunity, which requires plaintiffs to show that government officials violated “clearly established” law to receive damages for harm — a standard that is rarely met. The 8th Circuit Court of Appeals, to cite just one of many egregious examples, has applied the doctrine to shield an officer from liability who slammed a woman to the ground, breaking her collarbone, even though she was walking away from him at the time. “The qualified immunity doctrine is absurd,” says Mark Kende, director of the Drake Constitutional Law Center and a civil rights attorney who has handled police shooting cases. “[I]t has no constitutional basis — it is a simple police/government doctrine that nullifies people’s rights.”
Still, there is a possibility that the Supreme Court could reform or end the doctrine. Many conservatives, including Justice Clarence Thomas, have criticized qualified immunity, says Daniel Urman, a law and policy expert at Northeastern University, and if you add in the four more liberal justices on the Court, then there is a majority opposed to it (several members of Congress, including Democratic Senators Elizabeth Warren and Bernie Sanders, have also introduced bills designed to end qualified immunity for police officers).
Another way that the Supreme Court could address racially discriminatory conduct is by lowering the standard needed to prove discriminatory laws and government action. This would require taking aim at the landmark precedent of Washington v. Davis (1976), which held that laws that have a racially discriminatory effect are valid provided they were not adopted to advance a racially discriminatory purpose. A standard that, again, is challenging to meet. “This is unnecessarily difficult,” says Kende. “It’s hard to read the minds or intent of actors, and they don’t usually openly admit bad motive.” A better standard, argues Kende, would be requiring a plaintiff to show that governmental actions have a clear disparate impact on minority groups, creating a presumption that such conduct was discriminatory — one the government could rebut.
But, the Supreme Court is unlikely to take on a precedent like Washington, says Kende. And it might be just as likely to limit the constitutional rights of racial minorities as expand them. Legal scholar Cass Sunstein argued in Bloomberg that the Supreme Court’s recent decision in Bostock v. Clayton County, Georgia, which banned employment discrimination on the basis of sexual orientation, may help pave the way for abolishing affirmative action for racial minorities because the court’s opinion (written by conservative Justice Neil Gorsuch) emphasizes focusing “on individuals, not groups.”
Most legal scholars feel that the conservative majority on the court is not likely to address racial injustice in any meaningful way in the near future. The court tends to reflect, not lead, social change, observes Urman, but social change, as we have seen this summer, can sometimes come in quick bursts. “So maybe, just maybe, the change in racial understanding will make it to the high court,” says Urman, “just not soon.”