Member Article

When I became a judicial law clerk right out of law school, my boss, a federal judge in Houston, Texas, explained to me that the goal of his job (and therefore mine) was to find the right answer and do the right thing. That was, in a sense, easy enough. Research the law, and figure out how it applies to the particular facts of each case — because following the law is the right thing to do. Of course, judges will disagree about how the law should apply. Such good faith disputes about the proper interpretation of the law are inevitable and healthy, playing out most publicly at the Supreme Court. Under our Constitution, the Supreme Court has the final say about what a particular law means. As a result, following the Supreme Court majority’s interpretation generally is the right thing to do.

But like all human institutions, the Supreme Court is not inherently righteous. It is wrong when the people who make up the institution are wrong. And in this moment, with racial inequity and injustice confronting the country, I am reminded of a trio of cases, which spanned about 100 years and which demonstrated the Supreme Court’s capacity toreconsiderright and wrong. Let’s work backward. Readers will be familiar with Brown v. Board (1954), the famous case that heralded the desegregation of our public schools under the Fourteenth Amendment to the Constitution, which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Although the country struggled to fulfill its promise, the holding of Brown is immutably true and should be celebrated, along with the Little Rock Nine, the black children who integregated the public school at the center of Brown; Vivian Jones, who was one of the first black students at the University of Alabama; and Ruby Bridges, the first black student to integrate an elementary school in Louisiana.

We also must reckon with the Supreme Court’s prior failings — and, more broadly, our country’s prior failings — that made  Brown necessary in the first place. For that is precisely what the Supreme Court did in Brown when it explicitly rejected the Supreme Court’s decision in Plessy v. Ferguson (1896). Just 58 years before Brown, the court in Plessy had put its stamp of approval on white supremacy by upholding a Jim Crow law that mandated separate cars for black people and white people. The Court’s majority wrote that, “[i]f one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.” In a disturbingly matter-of-fact manner, the Court further explained that “the question of the proportion of colored blood necessary to constitute a colored person” should be left to the individual states.

Plessy did not materialize out of the radically racist philosophies of the 1896 Court. It was built upon a solid foundation of white supremacy, which had been cracked but not excavated by the ratification of the Fourteenth Amendment in 1868. In 1857, the Supreme Court had issued its decision in Dred Scott v. Sanford, which presented this question: “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 to the citizen?” The answer was no: “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” The Court continued: “On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” The raw brutality of this decision cannot be conveyed any better than by the Court’s own words.

This is not an exhaustive account of the Court’s cases involving matters of racial or ethnic discrimination. It is, however, a reminder that throughout our history we have fallen short of the Constitution’s promise to “form a more perfect Union,” “establish justice,” and “secure the Blessings of Liberty to ourselves and our Posterity.” It is a reminder that the Court is not perfect. And it is a reminder that our system of government, however well conceived in its structure and however well suited to promote liberty, is vulnerable to hijacking. The Supreme Court in 1857 and again 1896 is but one example.

By looking back, I am neither criticizing nor promoting modern Supreme Court doctrine on the Fourteenth Amendment. I am not an expert on those matters. But I ask that you appreciate the small part of the Supreme Court’s history that I have detailed above. Think about where we have been — in 1857, 1896, and 1954 — and where we are — in 2020. The Supreme Court and the people of this country have reconsidered what is right and true time and again, and we would do well to reconsider our laws, our systems, and the effects of those laws and systems on people who historically have been oppressed — both overtly and covertly — because of the color of their skin.

Martin Luther King, Jr., famously said that the “arc of the moral universe is long, but it bends toward justice.” What does the arc look like today and how close is it to justice?

* * *

Turning now to a recent decision from the Supreme Court, but with MLK still on my mind, I am reminded of his distinction between just and unjust laws: “Any law that uplifts human personality is just. Any law that degrades human personality is unjust.” That wisdom seemed apt in view of the Supreme Court’s recent decision in Bostock v. Clayton County, No. 17-1618.

Bostock (which actually was one of three related cases at the Court) presented one of the biggest legal issues to come before the Court this year, in terms of practical effects for people and businesses, as well as academic debates regarding judicial philosophy: Does Title VII of the 1964 Civil Rights Act (i.e., the primary anti-discrimination law on the federal books) prohibit discrimination on the basis of sexual orientation and gender identity? Many businesses, both large and small, and local governments, along with a handful of states, already barred such discrimination. But at the federal level, the issue was uncertain.

Click here to read more.