The stakes of this nomination could not be higher for racial equality and civil rights in this country. The Supreme Court is already far more conservative than it has been at any point in modern history. The Court is bitterly divided on key issues, and we have already witnessed a substantial erosion in the Court’s commitment to civil rights.
After the Supreme Court immobilized Section 5 of the Voting Rights Act of 1965 in Shelby County, Alabama v. Holder, voters throughout the country have had to rely on other provisions, including Section 2 of the Voting Rights Act, to challenge laws and policies that deny or abridge the right to vote for African Americans and other people of color. The Supreme Court is poised to consider the contours of Section 2 of the Voting Rights Act this term in Brnovich v. Democratic National Committee. In recent months, and often in closely divided decisions, the Court has also summarily lifted lower court injunctions that blocked state laws requiring voters with pre-existing health conditions to meet onerous requirements for submitting absentee ballots that could expose them to COVID-19 infection in order to vote. In one of those cases, Justice Ginsburg, speaking for four dissenting justices, wrote that she feared the Court’s order lifting the lower court’s injunction “will result in massive disenfranchisement.” In another 5-4 decision two years ago, the Court narrowed two other important voting rights laws, the National Voter Registration Act and the Help America Vote Act, ruling that those laws permitted the State of Ohio to purge voters simply because they had not voted in three federal election cycles and had not responded to a mailing.
Because it is so difficult to prove intentional discrimination, the disparate impact provisions of Title VII of the Civil Rights Act of 1964 and the Fair Housing Act of 1968 are essential to remedy and deter racial discrimination in employment and housing. Although Title VII’s disparate impact provision was recognized by the Court almost 50 years ago and has been repeatedly reaffirmed by Congress since that time, the Court effectively narrowed that provision in a 5-4 decision in 2009. In a concurring opinion in that case, Justice Scalia made remarkable assertions that this essential tool to remedy discrimination leads to improper “racial decisionmaking” and that there is a “war between disparate impact and equal protection.” Additionally, the Court sharply divided in the 2015 decision recognizing that the Fair Housing Act prohibits disparate impact discrimination, with Justice Anthony Kennedy (who retired in 2018) writing for a 5-4 majority that included Justice Ginsburg. The Trump Administration recently announced a new rule that seeks to undermine that decision.
The past several years have seen an onset of increased criticism of and challenges to race-conscious admission policies at colleges and universities, despite the fact that widespread discrimination results in Black, Latinx, and Native American students consistently being denied equal access to high-quality K-12 education. As recently as 2016, a bare majority of justices, in a decision by Justice Kennedy, agreed to uphold one such policy used by the University of Texas at Austin. The issue is likely to return to the Court. A conservative-led organization has spearheaded a challenge to Harvard College’s race conscious admissions policy, and in a reversal of positions it took in 2013 and 2016, the United States Department of Justice has now taken up positions opposing affirmative action in college admissions. In fact, on October 8, the Department of Justice itself took the extraordinary step of filing suit against Yale University, challenging Yale’s affirmative action program. In its complaint, the Department of Justice asserts that it is in a position to define who is “Asian,” for purposes of this Complaint, asserting that “references to Asian applicants exclude racially favored Asian applicants who identify, at least in part, as from a favored Asian-American subgroup, such as applicants who identify as Cambodian, Hmong, Laotian, or Vietnamese.”
Since his inauguration, President Trump has used the weight and authority of his office to implement xenophobic policies. On January 27, 2017, President Trump signed his first travel ban, which immediately banned nationals from seven Muslim-majority countries from entering the United States. In a notorious 5-4 decision, the Supreme Court upheld a revised version of this discriminatory ban. In another case, the Court, by a narrow 5-4 margin, vacated the Trump Administration’s attempt to chill Latinx participation in the Census by adding a question about citizenship status for pretextual reasons. Undeterred, the Administration has implemented new tactics designed to ensure that people of color are undercounted in the Census. Lower courts have again blocked its efforts, and the Administration currently has another application pending in the Supreme Court. In yet another example of executive overreach, President Trump re-appropriated military funds to build a border wall that Congress unequivocally rejected. The lower courts blocked his action, but the Supreme Court stayed the injunction in a 5-4 ruling without opinion and refused to lift the stay in another 5-4 ruling without any explanation by the majority.
Every Term, the Court issues momentous decisions, which are usually sharply divided, in key criminal justice cases. For example, in recent terms, the Court has repeatedly denied relief in death penalty cases by 5-4 votes, even preventing the lower courts from considering powerful evidence that federal executions authorized by Attorney General Bill Barr this summer—the first federal executions in 17 years—were unconstitutional; expanded, over a dissent joined by Justice Ginsburg, the scope of the judge-made doctrine known as qualified immunity, which has thwarted suits to hold police officers liable for violence and other misconduct; and overturned notorious laws that had been motivated by racism and anti-Semitism and had permitted felony convictions by nonunanimous juries in Louisiana and Oregon, with Justice Ginsburg joining the majority, and over a sharp dissent by three Justices. A new case concerning the scope of this latter decision is currently pending before the Court.
Access to quality health care is a racial justice issue, especially during the COVID-19 pandemic, which has had a particularly devastating impact on communities of color. The Supreme Court has twice upheld the Affordable Care Act by narrow majorities, with Justice Ginsburg casting a pivotal vote to uphold the law each time. Judge Barrett, by contrast, wrote that Chief Justice Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” There is now yet another challenge to the Affordable Care Act pending before the Court, and the Trump Administration is urging the Court to invalidate the law.