It’s no secret that racial equality remains more of an aspiration than a reality in the United States. Civil rights activists are worried that a 6-3 conservative court could hinder progress.
In 1857, the US Supreme Court was faced with an enormous question—one which, no matter the answer, would have far-reaching consequences for generations.
“The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?”
This was the choice the Supreme Court was faced with in the case of Dred Scott v. Sandford in 1857: Are Black people American citizens?
In what has since been called the Court’s “worst decision ever,” the justices ruled 7-2 that Black people, regardless of whether or not they were enslaved or free, were not American citizens under the Constitution, and thus did not have the right to file lawsuits in federal court. The Court also decided Congress did not have the power to ban slavery in the US territories and declared that slaves were property under the Fifth Amendment, upholding the rights of slaveowners and finding that any law that deprived them of their property was unconstitutional.
The ruling underscored the Court’s role for much of American history, according to experts: Protecting the elite, property rights, and slaveowners’ rights at the expense of the poor and marginalized. The Court continued this trend with its 1896 decision in Plessy v. Ferguson, which affirmed the idea that the races could be segregated by law as long as public facilities available to each were “equal, but separate.”
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It wasn’t until its 1954 decision in Brown v. Board of Education that the Court reversed its embrace of the “separate but equal” doctrine of racial segregation. In that case, the nine-justice court ruled unanimously that racial segregation of children in public schools was unconstitutional.
As the Civil Rights Movement grew and won hard-fought gains, the Court departed from its historical role as protector of the elites and played a critical role in advancing and affirming the rights of Black Americans. During the 1960s and early ’70s, the Court invalidated state laws that banned interracial marriage, upheld the 1965 Voting Rights Act that prohibited racial discrimination in voting, and advanced integration of public schools.
But in recent years, buoyed by a half-century-long effort from Republicans to remake the judiciary, the Court has drifted back toward its more conservative tradition, often at the expense of the marginalized. With the impending confirmation of conservative judge Amy Coney Barrett, civil rights activists are worried this trend will accelerate under a 6-3 conservative court, hindering progress and potentially leading to further rollbacks of Black Americans’ civil rights.
Barrett has only served as an appellate court judge for three years, but upon reviewing her record as a law professor and judge, the NAACP determined that she was “stunningly hostile” to civil rights.
The Movement for Black Lives is one of countless advocacy organizations that oppose Barrett’s confirmation to the Court. “We oppose any nomination that is not in line with our vision for Black lives, that does not consider the horrible outcomes that can come from a truly conservative agenda,” Rukia Lumumba, co-director of the organization’s Electoral Justice Project, told COURIER.
That vision includes a transformation of the systems of policing and criminal justice to emphasize community-led approaches to public safety and greater investments in housing, health care, and employment opportunities to build equitable communities for all people.
It’s no secret that racial equality remains more of an aspiration than a reality in the United States, thanks to decades of systemic racism.
In 2016, the net wealth of an average white family was $171,000, 10 times the wealth of an average Black family ($17,150). Black Americans are also more than twice as likely as white Americans to live in poverty and far less likely to obtain a bachelor’s degree. Black people are more likely to lack health insurance than their white counterparts, and while the Affordable Care Act (ACA) dramatically reduced that disparity, as of 2018, the uninsured rate among Blacks was 11%; it was just 8% among whites.
These disparities have been on full display during the coronavirus pandemic, and civil rights advocates worry an even more conservative Court could further exacerbate them in any number of ways. That includes repealing the ACA, reversing Roe v. Wade—a decision that would disproportionately harm Black women—or denying equal educational or employment opportunities.
Barrett’s record offers ample reason for concern. She has opposed both the ACA and the Court’s 1973 decision affirming a woman’s legal right to abortion care, and has also ruled against plaintiffs in employment discrimination cases. In one 2017 case, Barrett voted to halt a lawsuit in which the US Equal Employment Opportunity Commission sued AutoZone after the company allegedly engaged in workplace racial segregation, assigning a Black worker to a particular store based on race—a violation of the Civil Rights Act.
In another case, Smith vs. Illinois Department of Transportation, Barrett authored an opinion finding that an employee being called the n-word at work did not necessarily constitute a hostile work environment. She acknowledged that it was an “egregious racial epithet,” but added: “Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
The NAACP blasted Barrett’s views on race, calling them “outside the mainstream” and pointing out that even Justice Brett Kavanaugh, while serving on the DC Circuit, regarded it as settled law in 2013 that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.”
The organization was one of 150 civil rights and public interest groups that joined together to oppose Barrett’s nomination given her record on the issues. In a letter to the US Senate, the coalition wrote that the judge “is incapable of rendering equal justice under law,” and if confirmed, “would grant President Trump nearly unchecked power to continue the devastating assault on civil and human rights in America.”
Rashad Robinson, president of Color Of Change, a racial justice organization, is also opposed to Barrett’s nomination.
“I deeply worry about all of the ways in which this court could bake in a type of inequality that doesn’t just hurt Black Americans, but hurts the idea of America—the very idea of economic prosperity and upward mobility—and cements in a vision where those that have exploited labor and exploited the rules continue to gain more and more power,” he told COURIER. “We have a real problem in this country of spending our time trying to fix oppressed people rather than fixing the systems that oppress people.”
Another way in which a 6-3 conservative Court could worsen inequality is by limiting who has the “standing,” or the ability to bring a case in court. Some of Barrett’s past judicial decisions have already been criticized as making it more difficult for victims of civil rights violations to obtain justice via the court.
If Barrett and her conservative peers on the Court make it more difficult for people to have standing, it could prove disproportionately harmful for Black Americans, who have often relied on the Court over the past 60 years to address instances of racial discrimination.
“There is this other issue around what cases will the Supreme Court hear with the change of the bench as well, and I think that is really critical,” Lumumba said. “We have so many issues that need to be addressed and that the Supreme Court can adequately address.”
Robinson said that the prospect of a conservative court that either doesn’t understand or appreciate the legacy of racial inequality poses a huge problem for the US.
“It’s very dangerous to an increasingly multi-racial Democracy—a Democracy that does not exist in this way any place else in the world—that is made up of people who come from all different lands and have gotten here in very different ways, and are seeking to try to build a society together,” he said. “When all of those things happen, but you have systems and individuals which seek to use their power to keep their knee on the necks of some, that cannot be a democracy that thrives and survives.”