In the midst of a dizzying array of decisions on the cutting edge of politics, life, and discrimination, it remains business as usual when it comes to blessing police violence at the Supreme Court. Today, the Supreme Court refused to review two dangerous decisions of the Eight Circuit Court of Appeals—which covers where George Floyd was murdered—that shielded police officers for killing unarmed civilians. One person, whose request for review Loevy & Loevy supported, Nicholas Lombardo, was killed like Floyd—was restrained on the ground and suffocated to death by officers holding him down for more than 10 minutes. The other, Ryan Stokes, an unarmed person executed for fleeing. With palpable exasperation, Justice Sotomayor points out that courts in police violence cases frequently ignore the plaintiff’s evidence and then use that willful ignorance to find no “clearly established” law. A double whammy that leaves those harmed by police violence with no remedy and the police with a clear message—they can continue to kill people with impunity.
“Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
– Justice Sotomayor’s dissent in 303 Creative LLC v. Elenis.
At the heart of this week’s Supreme Court decisions is a fundamental truth: we cannot depend on the federal judiciary to protect us. Today’s majority decision in 303 Creative LLC v. Elenis is rife with hypocrisy and, as Justice Sotomayor notes, “threatens…to allow the exclusion of other groups from many services”. The Roberts Court is as willing to overturn fifty years of precedent in a single decision, ignoring the continued realities of systemic discrimination that bleeds into every facet of our society, as it is to deny, carte blanche, queer people equal access to public accommodations.
The simple reality is that in the face of this activist Court, a case is determined not on its merits, but on the ideologies of the six conservative Justices. As a lawyer who seeks justice for individual clients who have been harmed by broader systemic injustice, I see these cases as a call to action for broader court reform. Our clients should not have to fight against systems designed to oppress them in court, as well as outside of it.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.
The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.”
– Justice Jackson’s dissent in
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
Yesterday’s Supreme Court ruling on race-conscious admissions created uncertainty about the future of affirmative action. But there is hope: the Court did not eliminate affirmative action but rather introduced new admissions guidelines. While universities can no longer consider race solely to achieve a diverse student body, they may consider how an applicant’s race affected their life.
Unfortunately, this may require applicants to give detailed accounts of their racial experiences, potentially penalizing those who do not. Once more, society is asking racial minorities to focus on their differences rather than their shared goals and accomplishments, and explain why they too deserve an education, while these truths remain assumed for racial majorities. These applicants must repeatedly prove racism exists and articulate how it has affected them. No doubt many will be able to. But why must some applicants also be educators?
Universities including Harvard have already suggested they will continue to consider race in compliance with the Supreme Court’s opinion. So, yet again, challenge accepted.
