-- ElyseSchneider - 10 Apr 2009

After generations of activism and legislative action we finally made it. The U.S. has elected as its 44th president, an African American with an activist background. Millions of Americans enthusiastically made their way to their polling place, bubbled in absentee ballots and waited for the proclamation that Barack Obama was in fact the new president-elect so that we could all breath more easily. But can we? Vast racial disparities in educational attainment and imprisonment and poverty rates still exist, yet the American judicial system has yet to address these issues in an influential manner. What is it about the judicial system, the Supreme Court in particular, that has led it to allow the furtherance of racial disparity? And from there, what can we do, as future lawyers, to change it?

There are four main reasons why the Supreme Court has not made any progress on racial disparities in the U.S. and has indeed worsened the situation. The justices themselves form a relatively homogenous group, the use of “originalism” has allowed the Supreme Court to adhere tightly to a constitution that was written by another similarly homogenous group, many justices were appointed by presidents who used the “Southern Strategy”, and the justices cover up their true ideology by using “transcendental nonsense” which they call logic.

Firstly, there is very little racial diversity amongst the Supreme Court justices and virtually no economic diversity. Justice Clarence Thomas is the only African-American justice. All other justices are Caucasian. Also, most of the justices do not come from poverty, and all have attended ivy-league law schools. Because most of the justices have not had to deal with issues of poverty or race, the Roberts Court has demonstrated what Steven Shapiro, the National Director of the ACLU calls, “insensitivity to issues of race and a grave detachment from real life experiences.”

Secondly, the constitution was written by a similarly homogenous group. Women and non-Caucasians were not a part of the process. This would not be a problem if we adapted the constitution to our changing vision of the world. Unfortunately, justices, most notably Scalia, adhere strictly to the words and the intent of the original creators of the constitution. This is problematic in a world where we are trying to rectify socio-economic differences based on race.

Thirdly, many of the judges were appointed by Republicans who followed the “Southern Strategy”, Nixon strategist Kevin Philips described the idea as pitting whites against blacks, stating for example “the more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats.” (“Southern Strategy” Wikipedia, April 6, 2009.) Justices who are appointed under this strategy therefore, likely choose to exacerbate racial disparity rather than rectify it.

Finally, judges cover up their true intentions by cloaking their ideology in logic. The landmark decision of Brown v. Board of Education 347 U.S. 483 (1954) for example, is considered to be one of the greatest advancements in civil rights history. However, later cases took a step back from this and used rhetoric that showed that the decision did not hinge on reality but on “transcendental nonsense.”For example, Crawford v. Marion County Election Board, 553 U.S. (2008) a voting rights case addressing a restrictive Indiana voter ID law which required voters to travel 17 miles to request an ID just to vote, the court ignored that it had a disproportionate effect on impoverished people of color. Justice Roberts simply stated “seventeen miles are seventeen miles regardless of whether you are rich or poor” and showed his poor skills at using what he called “logic” to cover up the fact that this restriction on Indiana voters simply did not bother him.

Though the situation seems dire there are ways that we, as future lawyers, can guard against the promotion of further racial disparity by the Supreme Court. We can predict what the courts will do based on their underlying ideology, promote using the constitution as a guide whose meaning changes as our country changes, and we can continue to promote education for children of all economic levels to get people who have experienced racial disparities first hand in the Supreme Court.

In “The Path of Law” Holmes says that law is about making predictions. To become real agents of change we need to identify the real motives behind the logic spewed by the courts in order to use it to our benefit. If we bring forth our cases in a way that either relates to or uncovers the justices’ ideology we can begin to change the way that the justices think of race issues and in turn change the results of important cases based on disparate racial impacts.

Similarly, we must expose the problems that are caused by using “originalism.” If we adhere strictly to the intentions of an extraordinarily homogenous group of men for our country we cannot progress to where the Americans of today want our country to be.

Finally, and underlying all of this, is the importance of education. People need to be aware of the reality faced by various sectors of our society and people directly affected by racial disparity need to be allowed the education to become a Supreme Court Justice. We can educate people through adopting meaningful participation in clinical programs and the study of social phenomena in our schools and by creating a system of free and effective education for all Americans.

Though undoubtedly a great moment, we should not lose ourselves in the historical significance of Obama’s election. The election of America’s first African American president represents a change of societal values, but whether this change can influence a transformation in the Supreme Court, depends on the steps that our generation of lawyers makes.