New Report: The Supreme Court Is a Grave Threat to Racial Justice and Racial Progress

Co-authored by Equal Justice Society and Take Back the Court, Study Highlights How the Court is Preserving White, Minority Rule

Read The Washington Post column by Greg Sargent on the report

The current right-wing Supreme Court majority is one of the greatest threats to racial justice and equity in recent American history, a new report from Take Back the Court and the Equal Justice Society argues. The six conservative justices’ judicial philosophies and jurisprudence on matters of race threaten progress on a wide range of racial justice issues. The potential damage spans from voting rights and affirmative action to employment discrimination, policy brutality, and criminal justice reform, making the Court a formidable barrier to realizing a just and equitable nation. 

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“The Supreme Court’s hyperpartisan, conservative majority poses an existential threat to the civil rights and civil liberties we’ve worked so hard to achieve, from decisions like Brown v. Board to Roe v. Wade,” said Congressman Mondaire Jones. “It also poses a threat to democracy itself. The current Court threatens the future of voting rights for millions of Americans, particularly Black and Hispanic voters whose voices have historically been shut out of the political process. We cannot sit idly by and allow the Court to advance racial injustice as the law of the land in this country. We must build a judicial system that is for the people, by the people. That requires expanding the Supreme Court.”

“This Supreme Court now has a supermajority of racial conservatives who believe 21st-century law should be interpreted on the basis of 18th century norms,” said Mona Tawatao, Equal Justice Society Legal Director. “Their positions include the belief that affirmative action is racism; voluntary school integration is illegal; the meaning of the Constitution as written by slaveholders is rigid law; and the right to vote can be blocked and limited by state and local governments to discriminate against Black and Brown citizens. To protect civil rights and advance racial justice, we need a Court that reflects our diverse country.” 

This new joint study walks through the regressive positions of the six conservative on race and previews several cases before the Court this term with stark racial justice implications. The 6-3 Court reflects the coordinated effort of white conservatives and their allies to hold on to power in an America that is changing demographically and politically. They do this by: 

  • Facilitating voter suppression by consistently gutting voter protections and validating practices that dilute the vote of racial minorities such as racial gerrymandering. 
  • Opposing affirmative action and standing poised to strike down any policy effort to affirmatively redress past discrimination. 
  • Permitting employment discrimination. Disparate impact doctrine, which allows litigants to prove discrimination based on effects, rather than solely discriminatory intent, is at risk under the new 6-3 Court. 
  • Allowing police brutality by expanding and misapplying a doctrine known as “qualified immunity,” which protects government employees from federal lawsuits, and shields police officers from civil liability for the use of excessive force. 
  • Blocking criminal justice reforms, willfully ignoring how changes in sentencing, jury verdicts, and Fourth Amendment jurisprudence adversely affect Black people. 

The Court also regularly hears cases on economic justice, environmental justice, reproductive justice, and criminal justice that materially impact everyday lives, often with an outsized impact on the lives of people of color. 

“Conservatives have been working in coordination for decades to achieve the current supermajority to solidify minority rule because that is the only way they can stay in power,” said Take Back the Court Director Aaron Belkin. “They will continue to strategically place cases in the federal court pipeline that threaten progress on racial justice and weaken our democracy. And once these cases reach the Supreme Court, they will use the pretense of ‘colorblindness’ to ignore the existence, let alone pervasiveness, of white supremacy in American society.” 

This study could not come at a more critical moment, as the Supreme Court heard oral arguments today in voting cases that give the Court another pathway to further gut the Voting Rights Act and suppress the rights of minority voters. In the first half of 2020, voting-rights advocates were 0-4 at the Supreme Court, even with Justice Ginsburg on the bench. With Justice Barrett now on the Court, the prospect for voting rights beyond the 2020 election looks bleak. 

“There’s no reform except for court expansion that would immediately rebalance the Court, and give Congress and the Administration the chance to address the crises we are facing now,” added Belkin. “We cannot build a multi-racial democracy with a stolen Court. Period. Full stop.”

Media Contacts: Marie Aberger, marie@letmebeclear.com, and Matt Lehrich, matt@letmebeclear.com