After the new Biden nominee joins the Supreme Court, the Court will continue to hear crucial cases that affect all of us. It has already agreed to hear two cases that far-right advocates hope will result in the complete end of affirmative action. Other important controversies concerning discrimination and racial justice likely lie ahead as well. A Black woman justice will play a critical role in such cases.
What’s Happening at the Court Concerning Affirmative Action?
In January, the Court announced it will review court rulings that approved the use of affirmative action to increase diversity at colleges and universities. The cases concern plans at Harvard and the University of North Carolina. The result threatens to achieve one of the Far Right’s goals of completely eliminating affirmative action. This would harm racial justice and deprive many of our students of the significant benefits of increased racial diversity. The Court will likely hear the cases this fall, after a new justice joins the Court.
Less than six years ago, the Supreme Court approved carefully structured affirmative action by colleges. Such plans do not constitute set-asides or quotas. Instead, they take racial diversity into account in individual college admissions, helping produce important racial diversity in higher education.
But the Court has “tilted right” as a result of Trump nominations since then. As a result, the new cases threaten “more than forty years of precedent” approving the use of affirmative action. They could well “reduce the number of Black and Latino student at nearly every selective college and graduate school.”
Could the Court Consider Other Far Right Efforts to Harm Racial Justice?
Yes. The far right has tried for years to weaken or eliminate the principle of proving discrimination through disparate impact. Under that precept, if an employer’s job test or a landlord’s application requirement excludes a lot more Black than white applicants, the practice has a discriminatory effect and violates federal law, unless the defendant proves that it is necessary for business reasons. This conclusion follows without needing proof that the employer or landlord intended to discriminate.
The Court first recognized the principle when it unanimously ruled fifty years ago that a power company’s high school diploma requirement was unnecessary and illegal. The Court agreed that the principle applies to fair housing cases in a 5-4 decision in 2015.
But the Far Right has long claimed that disparate impact is “dubious” and has continued to attack it. In 2019, Trump judges cast the deciding votes to seriously weaken the discriminatory effect principle as applied to fair housing in the Fifth Circuit. And as part of its efforts to “systematically” undermine civil rights protections, the Trump Administration issued a rule that made it very difficult to prove disparate impact discrimination in housing.
Fortunately, a lower court stopped the Trump rule temporarily. The Biden Administration’s Department of Housing and Urban Development (HUD) has proposed a new rule, similar to one issued under the Obama Administration. The rule fully embraces the discriminatory effect standard as applied to fair housing. Conservatives have already opposed the rule.
In the next few years, the Court could very well consider the issue. This could happen either through a challenge to the HUD rule or a case weakening the discriminatory effect standard as in the Fifth Circuit. Either way, a Court decision on the discriminatory impact principle would have huge stakes for racial justice and discrimination.
What Other Discrimination and Racial Justice Issues Could Come Before the Court?
The Court will likely consider other important racial justice issues after the new justice replaces Justice Breyer. A later post will discuss voting discrimination and the Voting Rights Act. The Court will take up an important redistricting case raising these issues this fall.
The new far-right Court could also consider other efforts to weaken laws prohibiting racial discrimination. For example, consider a concurring opinion by Justice Ruth Bader Ginsburg in a 2020 case. She pointedly noted that the majority left open whether a significant loophole exists in an important federal law prohibiting racial discrimination in contracting. A large corporation claimed that the law applies only to the “final decision whether to enter a contract,” not to “earlier stages.” Ginsburg warned that under this view, an employer could “refuse to consider” job applications from “[B]lack applicants at all” and not violate the law.
The Court sent the case back to a lower court to proceed. The corporation could very well ask the Court to resolve the troubling issue on appeal.
What Could a New Black Woman Justice do?
She will replace Justice Stephen Breyer, who generally has voted in favor of affirmative action and strong efforts to fight discrimination. Because of the Trump justices added to the Court under questionable circumstances, the Court will remain stacked against racial justice, at least in the short term. It will take hard work by progressives over a number of years to change the Court, just as the Far Right did.
But as the late Justice Byron White reportedly put it , with each new justice, there’s a new Supreme Court. As Justice Sandra Day O’Connor explained, Justice Thurgood Marshall had an important influence on the Court by sharing his life experiences. The perspective of a Black woman justice may similarly make a difference in cases dealing with issues like affirmative action and racial justice. As Rev. Leslie Watson Wilson recently put it, “[a]ll American people will benefit when deliberations and decision-making on our highest court are sharpened by the perspective and persuasive power of a Black female justice.”
That perspective will likely also sharpen dissents from far right Court rulings. This will help promote reconsideration of such issues by Congress or the Court in the future. For example, a strong dissent by Justice Ginsburg helped lead Congress to change federal civil rights law and overcome a Court ruling that limited fair pay for women on the job. Something similar could happen if a far-right Court majority cuts back on laws promoting racial justice. As history teaches, a new Black woman justice can help in "exerting influence and shifting the public discourse" on the Court.
Replacing Justice Breyer with a Black woman justice is a crucial first step towards solving the threat to racial justice posed by the far-right Supreme Court.