In the wake of Justice Ruth Bader Ginsburg’s death and the Trump administration’s rush to replace her, progressive voices have called for reshaping the U.S. Supreme Court. Among various suggestions are calls for adding as many as six justices, term limits and reducing the court’s power. To date, commentators have focused their arguments on retaliatory politics rather than redressing the court’s chronic anti-Blackness. We cannot pretend that court-packing alone will lead to a healthy justice system that values Black lives.
Every step of the miscarriage of justice surrounding Breonna Taylor’s death reveals the pervasive rot in our system. Our police are anti-Black and unaccountable to the law. Our prosecutors abuse their discretion by advancing mass incarceration and protecting racist police. And our courts complicitly adopt deferential rules for reviewing the misdeeds of police, prosecutors and judges. We need to pack the Supreme Court with color-conscious constitutionalists to even begin to address the systemic racism in our legal system.
Any new justices on the court must be held to a high standard. They need to not only understand that racially discriminatory laws violate the 14th Amendment but they must be color-conscious. The Reconstruction amendments were formulated to broadly protect the civil rights of newly freed Black Americans. For most of the century and a half since their ratification, most Supreme Court justices have worked to undermine that goal. The court has established prohibitively high evidentiary barriers to racial discrimination claims — both for 14th Amendment challenges to legislation and private suits under the Civil Rights Acts.
Even supposedly progressive justices frequently have failed on issues of racial justice. None of Sonia Sotomayor’s colleagues joined the portion of her dissent exploring the consequences of Utah v. Strieff for people of color. Sotomayor alone expressed her concern that expanding the police’s ability to legally stop individuals without even reasonable suspicion would exacerbate the abuses that require every Black parent to give their children “the talk.” Justices Ginsburg and Stephen Breyer recently sided with the court’s conservatives to allow the Trump administration to speed up its efforts to remove asylum-seekers. The Kelo decision, sanctioning the use of eminent domain in gentrification projects, was joined by all of the court’s liberals against its conservatives. Aside from Sotomayor, the court’s recent justices have mixed records on race, at best.
This likely should come as no surprise. The Supreme Court, like federal courts in general, has a prosecutor problem. All eight current justices have advocated on behalf of the government before joining the bench. Only Chief Justice John Roberts, in his pro bono work, ever argued for individuals against the government. The problem with this career path for the most powerful judges in the country should become apparent as soon as you consider how anti-Blackness influences prosecutors and how prosecutors perpetuate anti-Blackness. Prosecutors — typically the most powerful actors in the criminal justice system — routinely use their broad discretion in ways that drive mass incarceration.
While Supreme Court justices are capable of introspection and independent thought, each of them does so in the context of their previous experiences. When those experiences so heavily run toward government interests in our racist criminal justice system, the odds firmly are stacked against (typically Black and Brown) criminal defendants. If we pack the court with more justices like these, we can expect more of the same.
But, if we pack the court with color-conscious justices, we stand a fighting chance of advancing the abolitionist project by redressing the critical failures of our justice system. What, then, does race-conscious jurisprudence entail? Aside from Sotomayor’s Strieff dissent, a few recent opinions can provide insight. In his concurrence to United States v. Curry, Chief Judge Roger Gregory of the 4th U.S. Circuit Court of Appeals laid bare the realities of policing in the two Americas. U.S. District Judge Carlton Reeves of the Southern District of Mississippi went even further in Jamison v. McClendon, excoriating the Supreme Court for its invention of the doctrine of qualified immunity for police and recounting the litany of police abuses that doctrine enabled. Justice Anita Earls of the North Carolina Supreme Court urged her colleagues, in a concurring opinion, to consider how defense attorneys can use racial stereotypes to create unreasonable doubt.
Courts must account for the differences in the experience of Black and white Americans with police, prosecutors and juries if we mean to even approach the promise — as yet unkept — of equal justice under law. These opinions provide a blueprint for future jurists to counteract the anti-Blackness ingrained in our justice system, and it is no surprise that the younger two authors appear on Demand Justice’s “Supreme Court shortlist.”
If we ever are to realize the goals of Reconstruction and its constitutional reforms, we must have a Supreme Court prepared to advance color-conscious constitutionalism. A “liberal” court would be worth very little if it also did not believe that Black lives matter. I advocate packing the court with color-conscious justices not as a means of settling a political score from Merrick Garland’s appointment, but to bring long overdue justice to America.
Brandon Hasbrouck is an assistant professor at the Washington and Lee University School of Law, and writes about criminal justice and race issues. Contact him at: email@example.com