Why The Supreme Court Continuously Fails Racial Minorities

The following is an excerpt from Erwin Chemerinsky's new book, The Case Against the Supreme Court (Viking, 2014). Reprinted here with permission.

The modern Court and racial equality

The Nixon appointees and the conservative justices who subsequently came onto the Court over the next thirty-five years—including Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—have greatly limited the use of the Constitution, and even of government, to achieve racial equality. Two important examples of this are the Court’s refusal to allow equal protection challenges based on a law’s discriminatory effect against racial minorities and the Court’s significantly limiting the ability of the government to use race to benefit racial minorities.

Before explaining this, I should pause to acknowledge that while virtually everyone agrees that decisions such as Prigg, Dred Scott, and Plessy were tragically wrong, there is no consensus that the Court’s race decisions since 1971 have often been misguided. Here, liberals and conservatives disagree. But I would argue that the Court’s view of equal protection—simultaneously cramped when racial minorities attempt to use it to challenge discrimination and expansive when whites use it to object to affirmative action—has been a serious obstacle to achieving greater racial equality.

[[{"type":"media","view_mode":"media_small","fid":"590932","attributes":{"alt":"","class":"media-image media-image-left","style":"float: left;","typeof":"foaf:Image"}}]]Some laws that are facially race neutral—that is, laws that don’t mention race—are administered in a manner that discriminates against minorities or has a disproportionate impact upon them. The Supreme Court has made it almost impossible to challenge such laws as violating equal protection and has held that there must be proof of a discriminatory purpose in order for such laws to be declared unconstitutional. This often makes it impossible to challenge government actions that have the clear effect of disadvantaging racial minorities. Especially now that legislators rarely openly express racism, it is very difficult—and often impossible— to challenge government actions that greatly disadvantage racial minorities.

Washington v. Davis, in 1976, was a key case articulating this limit on the ability to use the Equal Protection Clause to challenge race discrimination. Applicants for the police force in Washington, D.C., were required to pass a test, and statistics revealed that blacks failed the examination much more often than whites. Because of the long history of disparities in education, standardized tests often have a discriminatory impact on racial minorities. Frequently they have no relationship to the job tasks involved in the position for which they are used to screen applicants. The effect is to significantly disadvantage minorities in hiring.

The Supreme Court, however, held that proof of this discriminatory impact was insufficient, by itself, to show the existence of race discrimination or to provide a basis for a challenge under equal protection. Justice Byron White, writing for the majority, said that discriminatory impact “[s]tanding alone . . . does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”

Many times the Court has reaffirmed this principle that discriminatory impact is not sufficient to prove a racial classification, and the clear effect has been to uphold laws that greatly harm racial minorities. For example, in Mobile  v. Bolden, in 1980, the Supreme Court held that an election system that had the impact of disadvantaging minorities was not to be deemed to violate equal protection unless there was proof of a discriminatory purpose. The case involved a challenge to Mobile, Alabama’s use of an at-large election for its city council. Mobile had a three-person city council. It might have, but didn’t, divide the city into three election districts. Instead it had an at-large election, in which every voter cast three votes for the three-person city council.

The city was predominantly white but had a sizable African American population. The long history of racially polarized voting in Mobile meant that only whites were elected in the at-large system. In fact, not one African American was elected to the Mobile city council in the twentieth century. Mobile, of course, like the state in which it is located, has a long history of race discrimination. Nonetheless, the Supreme Court found no equal protection violation because there was not sufficient evidence of a discriminatory purpose. The Court declared: “[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause. . . . [T]his principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination.” Election systems like Mobile’s, which significantly disadvantage minority voters, are thus rendered immune from constitutional challenge.

Similarly, in McCleskey v. Kemp, in 1987, the Supreme Court held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation. Warren McCleskey, an African American man, was convicted of murder and sentenced to death in Georgia. Statistics powerfully demonstrated racial inequality in the imposition of capital punishment in that state. A study conducted by University of Iowa law professor David Baldus found that the death penalty was imposed in 22 percent of the cases involving black defendants and white victims; in 8 percent of the cases involving white defendants and white victims; in 1 percent of the cases involving black defendants and black victims; and in 3 percent of the cases involving white defendants and black victims. Baldus found that “prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims; 15 percent of the cases involving black defendants and black victims; and 19 percent of the cases involving white defendants and black victims.” After adjusting for many other variables, Baldus concluded that “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”

Studies across the country constantly show that the death penalty is administered in a racially discriminatory manner. Prosecutors are more likely to seek the death penalty and juries are more likely to impose it when the defendant is African American or Latino.

The Supreme Court, however, said that for the defendant to demonstrate an equal protection violation, he “must prove that the decisionmakers in his case acted with discriminatory purpose.” Because the defendant could not prove that the prosecutor or jury in his case was biased, no equal protection violation existed. Moreover, the Court said that to challenge the law authorizing capital punishment, the defendant “would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect.” This is an obviously impossible burden—juries and legislators do not express their racism—and closed the door on constitutional challenges to racial discrimination in administering the death penalty. After the Court rejected his challenge, McCleskey was executed by the State of Georgia.

Cases such as Washington v. Davis, Mobile v. Bolden, and McCleskey v. Kemp  establish that proof of a racially discriminatory impact is not sufficient by itself to prove an equal protection violation; there also must be proof of a discriminatory purpose. This has a huge effect on the law and on people’s lives. To pick a single example, federal law imposed punishments for crack cocaine that were as much as a hundred times greater than those for powder cocaine. More than 90 percent of those convicted of crack cocaine offenses were racial minorities, while more than 90 percent of those convicted of powder cocaine offenses were white. The result was an enormous discriminatory effect against African Americans and Latinos, even though evidence showed that both forms of the drug were equally harmful and addictive. Although this disparity was narrowed recently, for years it existed, and a successful constitutional challenge could not be brought because it could not be proven that the purpose of the disparity was to harm racial minorities. There has been a tragic human cost in the greatly disproportionate incarceration of men of color.

It would not have been difficult for the Court to have permitted proof of a racially discriminatory impact to be the basis for an equal protection claim or at least to shift the burden to the government by requiring it to show that its action was based on other than race discrimination. It should be noted that civil rights statutes can, and often do, allow violations to be proved based on discriminatory impact without evidence of a discriminatory purpose. For example, Title VII of the Civil Rights Act of 1964 allows employment discrimination to be established by proof of discriminatory impact, and the Voting Rights Amendments of 1982 permit proof of discriminatory impact to establish a violation of that law. North Carolina had a racial justice law that allowed challenges to death sentences based on proof of a racially discriminatory impact, though it has since been repealed. So the Court could have found proof of a discriminatory effect to be enough to show race discrimination under equal protection. But instead the Court has said that under the Constitution, proof of discriminatory effect is, by itself, insufficient to establish a denial of equal protection.

Proving discriminatory purpose is very difficult; legislators and government officials will rarely say that they are taking an action to harm racial minorities, and even if that is their goal, they usually can articulate some benign purpose for their action. Therefore, many laws with both a discriminatory purpose and a discriminatory effect often will be upheld just because of evidentiary problems inherent in requiring proof of such a purpose. Scholars such as professor Charles Lawrence observe that this is especially true because racism is often unconscious, and such “unconscious racism . . . underlies much of the disproportionate impact of governmental policy.” In a society with a long history of discrimination, there should be a presumption that many laws with a discriminatory impact likely were motivated by a discriminatory purpose.

More important, the Court has failed to realize that equal protection should be concerned with the results of government actions and not just their underlying motivations. Professor Laurence Tribe explains: “The goal of the equal protection clause is not to stamp out impure thoughts, but to guarantee a full measure of human dignity for all. . . . Minorities can also be injured when the government is ‘only’ indifferent to their suffering or ‘merely’ blind to how prior official discrimination contributed to it and how current official acts will perpetuate it.”

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