Last month, the newest Smithsonian museum, the National Museum of African American History and Culture, opened in Washington, DC. Demand for the museum is so high that tickets are sold out until 2017. Reports indicate that the building can’t accommodate the number of visitors.
I visited the museum last week. It is nothing short of amazing. As an African American, I couldn’t help but wish that all Americans could visit the museum to learn about the role African Americans played in this country’s journey. As an African American lawyer, I couldn’t help but wish that all lawyers and judges in this nation would be required to tour the museum to help them to improve their reasoning when they encounter racial issues.
Law and history are understandably entwined. While history often plays a role in judicial decisions, in far too many cases, the Supreme Court has chosen to ignore the history of racism in this nation. Even worse, certain justices refuse to acknowledge that the legacy of racism continues to impact the lives of African Americans to this day. The justices’ twisted understanding of African American history has led it to make decisions that are harmful to African Americans.
Starting in the 1980s, a more conservative Court began to chip away at the gains made during the Civil Rights Movement. In 1987, the Court heard McClesky v. Kemp, in which a Black man argued that the death penalty in Georgia was unconstitutional due to its racial bias. While McClesky contended that Georgia’s racial history should be considered, the majority rejected his argument. The dissenters countered, “For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery.” After chronicling more than a century of racially discriminatory Georgia laws, the dissenters stated, “[I]t would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey’s evidence.” The dissenters’ willingness to consider history unsurprisingly led them to reach a different outcome.
In City of Richmond v. Croson, Richmond, a 1989 case, Virginia was sued after implementing an affirmative action program to benefit non-white contractors. The majority held that the program was unconstitutional, as there was no proof of racial discrimination. In his dissent, Justice Thurgood Marshall attacked the majority’s refusal to consider Richmond’s racial history, stating, “[T]he majority downplays the fact that the city council had before it a rich trove of evidence that discrimination in the Nation’s construction industry had seriously impaired the competitive position of businesses owned or controlled by members of minority groups. It is only against this backdrop of documented national discrimination, however, that the local evidence adduced by Richmond can be properly understood. The majority’s refusal to recognize that Richmond has proved itself no exception to the dismaying pattern of national exclusion which Congress so painstakingly identified infects its entire analysis of this case.” As Justice Marshall indicated, ignoring history can both affect and “infect” a court’s decision making process.
In the 2003 case of Grutter v. Bollinger, the plaintiff alleged that the admissions program at the University of Michigan law school was racially biased against whites and therefore unconstitutional. The Court disagreed and held that public universities could use race as a factor in their admissions processes under certain conditions. But Justice O’Connor’s majority opinion held an interesting caveat. After noting that it had been twenty-five years since the Court first approved affirmative action, she wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In her dissent, Justice Ginsberg disagreed, stating, “[I]t was only 25 years before [allowing affirmative action] that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.” So, the majority opinion’s ignorance of history lead it to impose an artificial limit on the existence of racism. By contrast, the dissent’s embrace of history led it to reject that approach.
In 2007, the Court decided Parents Involved. The court considered whether public school districts could use race to assign students as a means to achieve racial integration. For the plurality, Chief Justice Roberts wrote, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. [T]he way to achieve a system of determining admission to the public schools on a nonracial basis, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In his dissent, Justice Stevens forcefully pushed back on this idea, writing: “The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France’s observation: ‘The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.” Again, a full understanding of history made the difference in a legal decision.
The most glaring example of the Court’s attempts to rewrite racial history came in the 2013 case of Shelby County. In Shelby, the Court was asked to considered the constitutionality of the Voting Rights Act of 1965. In evaluating the case, the majority noted that the Act was passed due to a history of rampant racial discrimination in voting laws. However, immediately after reciting this history, Chief Justice Roberts wrote, “But history did not end in 1965.” The Court proceeded to find that based on current trends, including the fact that African American voter registration has grown exponentially in the last forty years, certain portions of the Act were unconstitutional. In her dissent, Justice Ginsberg countered, “There is no question . . . that the covered jurisdictions have a unique history of problems with racial discrimination in voting. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” But the Court ignores that ‘what’s past is prologue.’ And ‘those who cannot remember the past are condemned to repeat it.’” Justice Ginsberg was able to use history to reach a result that would have helped Black voters. The majority’s refusal to address that history resulted in a new batch of laws aimed at minimizing the Black vote.
As these cases show, failure to understand our past impacts our ability to understand the present. Moreover, refusing to acknowledging the role of racism in America’s past and present keeps judges from rendering decisions that help people of color. African Americans have achieved many legal victories during our time in this country, from the abolition of slavery to Civil Rights Movement. But in order to understand the significance of these legal victories, one must understand the history of the people that fought for them. To paraphrase Frederick Douglas, if you don’t understand our struggle, you can’t fully appreciate our progress. And those who don’t appreciate our progress certainly won’t help us further it.