Abstract

Excerpted From: Zamir Ben-Dan, Deeply Rooted in American History and Tradition: The U.S. Supreme Court's Abysmal Track Record on Racial Justice and Equity, 15 Alabama Civil Rights & Civil Liberties Law Review 45 (2023-2024) (628 Footnotes) (Full Document Requested)

Of all our studies, history is best qualified to reward our research. - Malcolm X

Much has been written recently about the Supreme Court under the leadership of John Roberts. Academics and pundits have criticized the court for being deeply partisan, promoting right-wing politics and beliefs to such an extreme as to call into question the court's legitimacy. Many writers have also lamented the relationship between the Supreme Court's Republican appointees and the Federalist Society, a conservative legal machine that has been instrumental in shifting legal practice and doctrine to the political right. One veteran federal court judge even resigned from the Supreme Court bar and excoriated Roberts and his right-wing co-justices in a scathing letter. Authors of law review notes and op-ed pieces have opined on ways to save the court.

Some scholars have commented on or written about the Roberts Court's treatment of issues of race. Professor Tom I. Romero, II, for example, wrote about the Roberts Court's false retelling of America's racial history in its precedents; he focused particularly on one of the Court's most renowned and infamous decisions, Shelby County v. Holder. Professor Khiara M. Bridges wrote a lengthy piece demonstrating how the Roberts Court has limited its recognition of racism to incidents and actions reminiscent of American racism before 1960. Professor Daniel Harawa examined some of the Court's more recent criminal law precedents and found them to be superficially positive but ultimately lacking and in line with the Roberts Court's woefully inadequate (as far as race is concerned) criminal law jurisprudence. The Roberts Court's racial jurisprudence, like its precedents on other issues, has moved or remained to the right, and its rightward shift has been cited to bolster the argument that the high court has lost its legitimacy under Chief Justice John Roberts.

It is true that under the Roberts Court, Supreme Court jurisprudence has moved more significantly to the right on a number of issues. The Court has overruled longstanding precedents, twisted the factual narratives to support its conclusions, decided questions that were not presented in the cases before them, and refashioned the law along clear ideological lines. However, on matters regarding race and racism, the Court's illegitimacy goes far beyond Chief Justice John Roberts and the present ensemble. When it comes to racial justice and equity, the Court's track record has consistently been abysmal throughout its 234-year existence. Landmark decisions such as Dred Scott and Plessy were not one-offs; they were predictable decisions given the High Court's precedents both preceding and following those decisions. The tenure of the Warren Court, the one period of the Supreme Court most scholars hold up as a triumph for racial justice and equity advocates, was truly an anomalous era. While the Court should be commended for its jurisprudence during the so-called “Second Reconstruction,” it failed to both fully acknowledge the impact of white supremacy on America as a whole and undo destructive First Reconstruction precedents that hinder contemporary efforts to promote racial justice.

The Supreme Court has consistently emphasized the importance of history in deciding constitutional matters. This article turns the history lens on the Supreme Court and offers an unprecedented examination of its race-related decisions from 1795-1945. The year 1795 makes sense: the Court came into existence with the ratification of the Constitution six years prior, and there are no opinions between 1789 and 1795 that decide matters appertaining to Native Americans or Black people. The year 1945 is an ideal endpoint; it is the year after the last overtly racist event the Court sanctioned: the Japanese prison camps during World War II. This article will examine the Court's precedents over a span of 150 years. The doctrines the Court developed and the racist frameworks it generated during this period have had a lasting impact on the Court's precedents after 1945.

The Court's decisions between 1795 and 1945 justified Native American colonization and cast indigenous peoples as savages in need of being civilized. The Court judicially upheld chattel slavery and relegated African Americans to the bottom of society. The Court put several nails in the First Reconstruction Era's coffin with treacherous opinions, the impact of which reverberates to the present. The Court foreshadowed the implementation of widespread racial segregation and steadfastly maintained Jim Crow. The Court endorsed white supremacy as the gold standard in the immigration context. Finally, the Court created a national security exception to the Fourteenth Amendment's prohibition against overt racial discrimination during World War II. This history will firmly establish the Supreme Court as the truest defender of white supremacy among the three branches of government. It will also provide key insights into the role the Court's precedents from this period play in exacerbating racial issues today. Whether doctrinally or otherwise, the Court has continued to uphold structures of white supremacy and has remained in the spirit of Dred Scott.

Compiling this history is important for three reasons. First, it will provide racial justice activists and advocates for Supreme Court reform the knowledge necessary to pursue adequate solutions. Knowing history is vitally important: one cannot plan for the future without understanding the present, and one cannot possibly understand the present without knowing the past. A significant reason why America has failed to make much racial progress is because large portions of the populace are ignorant of history. It is that lack of history that allows some to believe that the Roberts Court is an outlier in what is otherwise a fair and just institution. Learning history will show that the Court's current approach to race and racism is not new. Much of what makes achieving racial justice impossible in the twenty-first century is the product of Supreme Court decisions going back over a century and attitudes that have lingered for decades.

Second, this history will provide law school professors with the information necessary to give a well-rounded legal education. Legal education tends to promote the study of law in a vacuum; it baselessly assumes law to be objective and grossly fails to account for the ways that other factors, especially race, play a role in shaping judicial doctrine. Legal education centered around Supreme Court doctrine is even worse, given how law schools and the constitutional law professoriate, in particular, revere the High Court. The fact that law students generally tend to be ignorant of progressive history compounds this problem. The false myth that law is objective renders future lawyers and jurists ignorant of the racial dynamics at play in judicial systems, and it further leaves them unprepared to grapple with racial dynamics constructively. Further, the myth that American law is objective has the adverse effects of objectifying and alienating law students of color in a myriad of ways. Only through an honest examination of the Supreme Court's precedents can future professionals have a better understanding of the interplay between law and existing systems of oppression. If the legal profession is to promote racial justice and equality, it is imperative to have this better understanding.

Finally, a history of the Supreme Court's racism will refute ignorant counternarratives such as post-racialism and colorblindness. At a time when there is a growing right-wing movement to ban educators from teaching about America's racial past, such a history could not be more timely. An examination of the Court's precedents spanning nearly 150 years, coupled with clear examples of how the Court's precedents apply to contemporary times and impact the present, offers a logical answer to those who deny the current presence of racism in America. It will further rebut arguments that the Court's decisions were only racist because it was bound by its own precedents and by rules of constitutional and statutory interpretation. The history will show that the most consistency in the Court's precedents is its adherence to whatever advances white supremacy.

This article will proceed in three parts. Part I will set forth premises regarding race and racism on which the foregoing argument will be based. Part II will explore the Court's race-related jurisprudence from Native American colonization to Japanese detention camps during World War II. Part III will examine present-day ramifications of the Court's prior decisions and draw comparisons between the Court's precedents before World War II and its decisions after World War II. The comprehensive history set forth in this article will be the first of its kind and will go beyond the landmark decisions most scholars are familiar with to examine how lesser-known cases also helped to fashion a racist America. In addition to the purposes explained above, it is the author's hope that this article will serve as a resource for other scholars working on matters regarding racism and the High Court.

[. . .]

From Native American colonization to World War II, the United States Supreme Court has consistently promoted racism and hindered racial justice and equity. The Court has maintained America's relationship of conquest vis-a-vis Native Americans. It legitimized chattel slavery and played no role in ending it. It also kept Old Jim Crow intact for over six decades after destroying what was left of Reconstruction in the 1870s. The Court has handed down disastrous precedents more than a century ago that remain good law. Worst of all, the legacy of the Court as a white supremacist institution continues to shape law and society today.

With a comprehensive history on the Supreme Court's race-related precedents, academics and activists can more effectively brainstorm solutions to America's ever-present race problem. Law professors can also provide a well-rounded education to their students by giving them a far more accurate depiction of the Supreme Court than what is typically found in textbooks. Finally, the similarities between the Court's approach to race then and now rebut any claims that America is a post-racial society; the Court continues to uphold white superiority, deny systemic racism while tacitly conceding its existence, and abide by the axiom in Dred Scott that Black people are without rights worthy of respecting.

Assistant Professor of Law, Temple University Beasley School of Law.