About the author: Neil Siegel is a professor of law and political science at Duke Law School, where he serves as director of the DC Summer Institute on Law and Policy.
Supreme Court justices typically write opinions that say more than what is strictly necessary to decide the case before them. In those opinions, the justices also communicate with their colleagues, other courts, and the country about the issues, values, and people they deem especially important. When it comes to the possibility and history of racism, however, most of the current justices—with the important exception of Justice Sonia Sotomayor—tend to respond the way so many white people do: More often than not, they would rather just not talk about it.
That tendency was evident this past term in most of the cases potentially implicating the subject of race.
In Kansas v. Glover, the Court held that a police officer could lawfully stop a vehicle about which the officer knew only that its owner had a revoked driver’s license. In 2016, an officer in Lawrence, Kansas, ran a license-plate check on a moving pickup truck and found that the license of the registered owner—Charles Glover—had been revoked. The officer stopped the truck, which Glover was driving, and Kansas charged him with driving as a habitual violator. In his defense, Glover argued that the stop violated the Fourth Amendment, which protects people against “unreasonable searches and seizures,” and the Kansas Supreme Court ruled in his favor, arguing that the officer had not adequately justified the stop and instead had “only a hunch” that Glover was driving.
One wouldn’t know it from the several opinions written by the justices, but the defendant appears Black. Does racial profiling explain the officer’s decision to run the vehicle’s license plate? One cannot know.
The Fourth Amendment protects people’s reasonable expectations of privacy when they are subject to searches and seizures by the police, but it is difficult to argue that people have such an expectation for their license plates, which are readily viewable by others when an individual is driving. So the Court understandably declined to read the Fourth Amendment as requiring police officers to explain their decision to run a license plate. But the risk of racial profiling is significant, and the justices might have drawn attention to the problem. That the officer spends most of his time running license plates seems unlikely, and at no point in this case did he give an explanation for his action. The justices might have also mentioned that police departments could insist that officers explain their reasons for running a vehicle’s license plate, to help limit racial profiling. Only Sotomayor expressed concern about the police stopping vehicles “based on nothing more than a demographic profile.”
There was no claim of racial discrimination in this specific case, so the amicus briefs filed in Glover’s favor did not focus primarily on the issue of racial profiling. But some of them did mention racial and socioeconomic disparities in police stops across the country; one of them emphasized that Black drivers are more likely than white drivers to be pulled over by the police and pointed to “evidence that racial bias motivates many traffic stops.” The lack of more extensive discussion in the briefs may in part be a function of the Court’s long-standing resistance to discussing the subject in Fourth Amendment cases.
Glover is not a one-off. It is extraordinarily rare for the justices—again, except for Sotomayor—to reference race or racism in cases involving police stops. For example, in Utah v. Strieff, in 2016, the Court held that when a police officer discovers a preexisting warrant for a person’s arrest, incriminating evidence seized pursuant to that arrest is admissible in court even if the officer’s stop of the individual was unconstitutional to begin with. The Court had nothing to say about whether it was enabling police to engage in racial profiling. Sotomayor wrote for herself alone that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”
There are many other examples one could cite and very few counterexamples. Racism was mentioned briefly in a majority opinion in 1968, in Terry v. Ohio, which provided the constitutional basis for the stop that occurred in Glover. There was also a brief discussion of race-based selective enforcement of the law in 1996, in Whren v. United States, but there the Court actually said that issues such as racial profiling and pretextual reasons for traffic stops may not be evaluated under the Fourth Amendment. Occasionally a justice will mention concerns about racism in a dissent, but that’s pretty much it.
The Deferred Action for Childhood Arrivals (DACA) case (Department of Homeland Security v. Regents of the University of California) is another example from this term in which the majority might have at least acknowledged the freighted racial or ethnic context and potential implications of a case, regardless of whether doing so would have altered the outcome. Instead, the majority opinion, which held that the Trump administration had acted arbitrarily (and thus unlawfully) in rescinding the DACA program, limited itself to deciding whether the administration had violated procedural requirements set forth in the Administrative Procedure Act. Four of the five justices in the majority (and all four dissenters) rejected the argument of the respondents that the decision to end DACA was unconstitutional because it had been motivated by animus against the beneficiaries of the program, concluding that there was “no plausible equal protection claim.” Only Sotomayor talked about the possibility of racism given Donald Trump’s past public statements that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists,” and his statement likening undocumented immigrants to “animals” who are responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.”
It should not be considered out of bounds for the justices to worry publicly about the possibility of racism just because the racist statements are made by the president of the United States. Such statements invariably affect federal officers further down the chain of command, regardless of whether there is sufficient evidence of such influence in a given case to change the result.
There were times this past term when most of the justices did better. In Ramos v. Louisiana, the Court held that the Sixth Amendment right to a jury trial requires a unanimous verdict to convict a defendant of a serious crime in both federal and state courts. As briefs on behalf of the defendant emphasized, the history of non-unanimous jury verdicts has everything to do with race and racism. Louisiana and Oregon originally permitted non-unanimous jury verdicts to negate the impact of Black and other minority jurors and thereby increase the likelihood of convicting Black people and other minorities.
The history in Louisiana is especially ugly. Reconstruction ended in 1876 as part of a compromise among white people that gave Republicans the White House and Democrats the end of military rule in the South. As Republicans tired of pursuing racial equality and joined the Democrats in courting business interests, former Confederate states were emboldened, and established an authoritarian, apartheid social order. Louisiana first embraced non-unanimous verdicts at its constitutional convention in 1898, when it declared white supremacy to be the official policy of the state and adopted numerous measures to disenfranchise Black people on a massive scale. Mississippi did much the same at its constitutional convention in 1890, and put the Confederate battle flag on its state flag in 1894.
To its credit, the majority in Ramos did emphasize the racist history of laws permitting non-unanimous jury verdicts. But it did so over the fierce objections of the three dissenters. Writing for them, Justice Samuel Alito accused the majority of using “ad hominem rhetoric” that “contribut[es] to the worst current trends” in public discourse. Alito also declined to concede the existence of this racist history, instead deeming the issue irrelevant to the outcome of the case. “If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable,” he wrote, as if the point were fairly debatable, “but what does that have to do with the broad constitutional question before us? The answer is: nothing.”
(Yet in another case this term, Espinoza v. Montana Department of Revenue, Alito wrote a concurring opinion in which he elected to emphasize the anti-Catholic history of certain laws prohibiting government aid to religious schools. It was not necessary for him to have done so to decide the case; he had already joined the majority opinion, which itself noted this history even though the case almost certainly would have come out the same way had the history of anti-Catholic bigotry been different. So it is not as if he disfavors talk of history in general.)
In another case, also this term, the Court again acknowledged some of the relevant history of racism in the United States, but it did not get the history quite right, making it sound better than it was. In Comcast Corporation v. National Association of African American–Owned Media, the Court held that a plaintiff who sues for racial discrimination in contracting under a federal law, 42 U.S.C. § 1981, has to show that race was not just a motivating factor, but a but-for cause of the plaintiff’s injury. It is much harder to prove but-for causation, which is why a major corporation, the Chamber of Commerce, and the Trump administration wanted this requirement, while civil-rights groups opposed it. This case obviously had to do with potential racism: It was expressly about proving certain claims of racial discrimination.
What is less obvious is that Congress originally passed Section 1981 as part of the Civil Rights Act of 1866, after the Civil War, to protect certain rights of formerly enslaved people. Concerns about whether the Thirteenth Amendment (which ended slavery) permitted Congress to pass this law led to the passage of the Fourteenth Amendment (which, among other things, includes a guarantee of constitutional equality).
What is also less obvious is how narrow was the understanding of racial equality embraced by the Congress that passed the Civil Rights Act of 1866. The Court in Comcast said that the law had been passed “to vindicate the rights of former slaves.” Sadly, the history is more complicated and depressing. The law was passed to protect the civil rights of formerly enslaved people, such as contracting, suing, and owning property. Civil rights for Black Americans at that time did not include political rights such as voting (hence the need for the Fifteenth Amendment) or social rights such as attending public schools with white children and marrying white people (rights—to America’s national shame—not protected by the Court until 1954 and 1967, respectively). These distinctions among civil, political, and social equality, which are not required by the text of the Constitution and no longer exist in U.S. constitutional law, were intended both to grant some measure of equality to the citizens who had been slaves and to strictly limit how much and what kind. By describing Section 1981 in sweeping terms, the Court failed to acknowledge the more sobering portions of the relevant history.
It would have been interesting to see the Court respond to a constitutional challenge to affirmative action or to the Voting Rights Act in the current political climate. But this term does illustrate why, in light of American history, racism and race relations remain the nation’s most enduring domestic crisis.
The impulse of most of the justices, most of the time, not to talk about race and racism is not excusable, let alone justifiable, but it is understandable. Why risk making oneself, one’s colleagues, and other audiences uncomfortable or even upset when it is not absolutely necessary to “go there”? When it comes to the subject of racism in this country, however, saying nothing often is saying something.
The general silence of the justices can have spillover effects that produce bad law in cases in which correct interpretation of the Constitution and statutes requires serious engagement with the long, tragic history of racism in this nation—and with its continued existence. For example, a Court more attuned to history and current social reality would not have been as likely to declare that “things have changed dramatically” and a key part of the Voting Rights Act is no longer constitutionally justified, which is what the Court said and held in Shelby County v. Holder in 2013. The Court’s equal-protection jurisprudence in the areas of affirmative action and disparate-impact liability might also look different. But if more often than not the justices can’t—or won’t—grapple with the nation’s racist history and present, then more often than not the law articulated by the Court will continue to be unworthy of the aspiration engraved over the front entrance to the building in which it sits: equal justice under law.