Roughly 120 million votes will be cast for president this November. And while each of these votes matters, the most important vote this election – especially for those who care about racial progress – is the ninth vote on the Supreme Court of the United States.
Donald Trump has promised to fill the vacant seat with a jurist “in the mold” of the late Justice Scalia. Those who care about racial justice cannot allow this to happen.
The Role of the Supreme Court
The Supreme Court’s primary responsibility is to interpret the Constitution and the laws of the United States. The duty to interpret is critical because the Constitution is not always clear. For instance, the constitution states, “No person except a natural born citizen . . . of the United States . . . shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.” The numerical requirements regarding age and residency are pretty clear. But what does it mean to be a “natural born citizen”? Does a person born in Canada to an American mother and Cuban father meet the requirement? When parts of the constitution can be read in more than one way, it is the Court that decides how the law should be interpreted.
Interpretation, however, is more art than science. Different judges interpret laws differently based on their backgrounds and beliefs. So, two judges looking at the exact same case could reach different conclusions.
The Supreme Court and Race
When it comes to race, interpretation is particularly crucial. Interpretation is the difference between allowing “separate but equal” facilities in Plessy v. Ferguson and outlawing segregation in Brown v. Board of Education. The Constitution did not change in the nearly sixty years between those cases, but the Court that was interpreting the Constitution did.
In the years since Brown, however, the Court has changed again. Affirmative action programs in universities are in great peril. For over forty years, the Court has frustrated the efforts of public schools to integrate their classrooms. The Court has often refused to acknowledge racial bias in the criminal justice system. The Court has narrowed the scope of important civil rights legislation. In all, since Brown, the Court has not been friendly to racial claims.
The best (or worst) example of the court’s racial hostility occurred just three years ago. In Shelby County, the Court was asked to consider the constitutionality of the Voting Rights Act of 1965. The VRA had been passed to prevent covered jurisdictions from dreaming up new ways to keep people of color from voting. A wealth of evidence showed that nearly fifty years after the VRA, people of color still faced barriers when voting. Nevertheless, the Court gutted important provisions of the VRA, rendering it mostly ineffective. Within days of the Court’s decision, Texas and North Carolina passed restrictive voting laws intended to harm people of color. While lower federal courts have since found those laws unconstitutional, if the Supreme Court had not opened the door in Shelley, these laws would not have been passed in the first place.
Why the Next Justice Matters
The next Supreme Court justice matters because that justice will decide the balance of power on the Court for the foreseeable future.
Prior to Scalia’s death, of the nine justices on the Court, four were conservatives – Scalia, Roberts, Alito, and Thomas. These four almost never voted in favor of a law that would benefit people of color. There were also four liberals on the Court – Ginsberg, Breyer, Sotomayor, and Kagan. These four tended to vote in a more racially progressive fashion. The ninth justice, Justice Kennedy, was the “swing vote,” as he sometimes voted with the Scalia group and sometimes voted with the Ginsberg group.
The Scalia vacancy is an opportunity to add a fifth justice to the Court’s progressive bloc. If this happens, for the first time since 1971, the Supreme Court will have a 5-4 progressive majority. With this majority, the Court would be free to interpret laws in a racially friendly manner. On the other hand, if Scalia’s seat is filled by a conservative, the Court would have a solid 5-4 majority against racial progress.
But there’s more: The average Supreme Court justice serves for sixteen years, but some have served for nearly forty years. Also, Justice Breyer is 78. Justice Kennedy is 80. Justice Ginsberg is 83. Any of the three – or all of the three – could decide to retire at any time over the next four to eight years. So, the next president will not only be able to fill Scalia’s seat, but might also be able to fill one, two, or even three additional seats.
If there are more retirements, the conservative majority on the Court could be 6-3 or even 7-2.
What’s So Bad About Justice Scalia?
Donald Trump has said that if he is elected, he will fill the vacant seat with a justice “in the mold of Scalia.” The thought of another Scalia on the Court (or two or three or four Scalias, if Trump gets to make multiple picks) should terrify all people that care about racial progress. Why? Because Scalia was an originalist. When interpreting the Constitution, originalists believe that the intent of the those that wrote the Constitution is the most important factor. Since many of those that wrote the Constitution owned slaves, an originalist point of view is generally not a winning one for people of color. (However, to be fair, Scalia was consistent. He didn’t think that women or LGBTQ+ people had any rights under the constitution either.) Here are some samples of Scalia’s racial thinking:
- On Affirmative Action Programs in the Construction Industry – “In my view, government can never have a compelling interest in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.”
- On Affirmative Action at the University of Texas – “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”
- On the Voting Rights Act – “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
- On the Court’s Prior Affirmative Action Cases – “Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented only slightly less strange.”
Clearly, Justice Scalia was no friend to people of color. Now, imagine another Scalia on the Court. In fact, imagine two or three. Imagine all three Scalias sitting next to the three current conservative justices. Imagine all six of them sitting there together for the next twenty years. Finally, imagine how this Court would rule on racial issues in those years. We would have a Supreme Court that would gleefully invalidate laws intended to help people of color. That same Court would be more than happy to keep laws that hurt us. In these years, the Civil Rights Act, the Voting Rights Act, and affirmative action would likely be destroyed.
We cannot let this happen.
If we lose the Court in this election, because of the length of time justices serve and the number of vacancies that could happen, it would take years to change the conservative court back to a liberal one. It has been forty-five years since the Court last had a progressive majority. It wouldn’t be irrational to say that it could take another forty-five years – or more – to build a progressive majority on the Court after a Trump victory.
The Takeaway
Most of the racial progress we take for granted today was either directed by Supreme Court decisions or approved by the Court. Legislatures can pass the most progressive laws ever seen, but if the Supreme Court invalidates them, it is all in vain. So, we must have a Supreme Court with justices that are willing to validate the laws that we voted, protested, marched, boycotted, and otherwise struggled to put in place.
So, this election, remember: We’re not just voting for the next four years. We’re voting for the next forty.