In 2005, when Justice John Roberts joined the Supreme Court as its new chief justice, it was clear that he would continue to lead the conservative majority that had been in place for the last 20 years. But few expected that this slow rightward drift would become the rushing torrent it is today. As the Supreme Court begins a new term today, and Elena Kagan joins the bench, the justices come together as the most conservative court that many commentators can recall. The court's conservative majority has favored expanding corporate influence, limiting employees' rights, strengthening prosecutors and whittling down rights for criminal defendants. And its reaction to race has been steadfast allegiance to the legal fiction of colorblindness.
The idea that race is irrelevant to public policy has become a staple of conservative ideology. In 2007, the Roberts Court struck down plans in Seattle and Louisville designed to promote integration in their schools. In doing so they declared that "diversity" was an individual choice that should be left to parents, but was an unconstitutional goal for school systems. The irony in both those cases was that the schools' plans were voluntary and did, in fact, represent parents' commitment to diversity, even where segregated housing patterns made it almost impossible without a targeted effort. But the court said that using race as a factor in school assignment ran contrary to its new standard of colorblindness.
This term, the Supreme Court doesn't have any major civil rights cases on its docket, but several cases bear watching because of their potential impact on communities of color.
In Flores-Villar v. U.S., for instance, the court will examine gender discrimination in a case that may have important implications for our immigration laws. This case concerns the constitutionality of an immigration statute that requires unwed fathers establish a 10-year period of U.S. residency, five of which must be after the age of 14, in order to pass his citizenship to a child born outside the U.S. to a non-citizen mom. Teenage dads can't meet this standard. But the same law allows unwed mothers to transfer citizenship to their children with no age restriction and only one years' U.S. residency. The rational behind the law is that birth gives a mother an immediate attachment to the child and that a biological connection can be preferred by our immigration laws, as it has been in some state laws on, say, pre-adoption notification. Is this distinction is constitutional? Many women's rights groups have filed amicus briefs arguing it's not.
It's not surprising that, in the wake of Arizona's SB1070, the immigration case before the court this term would emanate from that Grand Canyon State. In Chamber of Commerce v. Whiting, the court is being asked whether a law called the Legal Arizona Workers Act, which imposes penalties on businesses that hire undocumented workers, intrudes on federal authority over immigration. It's the same question a lower court is now weighing on the more famous SB1070. Arizona's Gov. Jan Brewer declared in signing the legislation that, "Because of Congress' failure to act, states like Arizona have no choice but to take strong action to discourage the further flow of illegal immigration through our borders." This legal question mirrors the current political debate on immigration issues, will state or federal authority prevail?
Last year, in the Citizens United case the court overturned several Congressional restrictions on corporate campaign financing. While the case was not about race or civil rights, the decision will likely mean the voices of poor and working class districts get drowned out by a torrent of corporate money. In a similar vein, this years docket includes cases that are likely to have a loud echo in communities of color.
There are two criminal justice cases before the court that illustrates what happens when that system fails. In Connick v. Thompson, John Thompson was convicted of capital murder and armed robbery and served 18 years in prison, much of it on death row. But his conviction was overturned when the defense discovered that the prosecutor had withheld evidence of his innocence. He later sued the prosecutor's office claiming that it had violated his civil rights. A jury not only acquitted Thompson, but in a separate federal proceeding awarded him $14 million in damages for the prosecutor's deliberate indifference to his rights, because of its failure to properly train and supervise the assistant DAs handling the case.
This case raises the question of whether the failure to properly train prosecutors is a singular incident, where there would no civil liability for the DA, or whether it represents a pattern where a civil rights claim could be brought. Given the number of cases being filed by Innocence Projects around the country, the outcome of this case could either open or close a new avenue for holding prosecutors accountable for their constitutional violations.
Meanwhile, California, like several states, is being crushed by the fiscal burden of mass incarceration. There are over 170,000 people in California prisons today. In 2002, inmates sued the state prison authority because of the lack of adequate medical care, a condition that the court found violated the Eighth Amendment prohibition against cruel and unusual punishment. But because of the state's failure to remedy these violations, a federal three-judge panel ruled in 2007 that California had to reduce its prison population by 46,000 inmates.
Now, in Schwarzenegger v. Plata, the question before the Supreme Court is whether the panel had authority to issue such a sweeping order. Regardless of the outcome of this case, one of the few bright spots of the fiscal crisis is that many states are now considering alternatives to incarceration that they were reluctant to embrace for fear of being labeled "soft on crime." California is slowly moving in that direction, but the decision in this case will dramatically impact the trend.
The culture wars rage on in the case of Schwarzenegger v. Entertainment Merchants Association. The issue before the court is whether a California law that bars the sale of violent video games to minors is a violation of the First Amendment rights of the manufacturers. Two lower courts ruled against California, so there is some question as why the Supreme Court even accepted this case. Some think the court might want to redefine the public decency restrictions on free speech.
The case begs tough questions for communities of color. The restrictions on the sale of any form of entertainment are an example of the state imposing its morality on the consumer. At the same time, the growing mass media is flooded with images of violence, some of it racist and misogynist. One video game on the market allows its players to rape women as part of the "play." In communities of color, the idea that parental control is the answer overstates the ability of parents to stem this onslaught and vastly underestimates the impact of these images on youth culture. Whether the court has an answer to this dilemma is doubtful.
There are many other cases worth watching on the courts 2010 docket. Some, like NASA v. Nelson, raise important privacy issues and others, like Arizona Christian School Tuition Org. v. Winn, question the degree to which public resources can be used to support private schools. It will be an important term and for communities of color, even with no major cases in the traditional legal territory of civil rights.