The elephant in the Supreme Court

February 29, 2016

The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

Race remains the unspoken elephant in the room amid the growing controversy over who should replace Justice Antonin Scalia on the U.S. Supreme Court.

For many African Americans, the lasting image of Scalia will likely remain his recent harsh words about affirmative action: He suggested that blacks performed better at less competitive schools. Scalia’s pungent, textual interpretation of the Constitution gained him few friends among black Americans, who have historically sought to reimagine, optimistically, the framer’s original intent — a version of democracy that included sharecroppers alongside plantation owners, the landless beside the gentry.



Scalia’s death casts a strobe light on the crisis of race and democracy in America today. Pervasive racial and economic injustice has made the past two years echo the turbulence and activism associated with the civil rights era of the late 1950s and early 1960s.

Decades of injustice under Jim Crow segregation laws ultimately triggered social and political unrest during the civil rights movement’s heroic period. Now, the increasing acknowledgment of institutional racism in the U.S. criminal justice system and high-profile police killings of unarmed black men and women inspired the Black Lives Matter movement.

But just as the civil-rights victories in the 1960s led to a major political realignment — with millions of outraged Dixiecrats voting for George Wallace in 1968, Richard M. Nixon in 1972 and then strongly backing Ronald Reagan in 1980 and 1984 — Barack Obama gaining the White House and the perceived racial advancements by blacks could spur another political realignment built on race.

Donald Trump’s meteoric rise as a Republican presidential candidate feeds on a toxic combination of economic anxiety and racial intolerance that portions of the white working class have embraced with a passion. These supporters echo the ugly nativism of the early 20th century. Whites shut out of the economic recovery by neo-liberal monetary, trade and public policies have chosen to scapegoat Obama’s presence in the White House as the locus of their ills, rather than the class of billionaire oligarchs that Trump exemplifies.

A new Supreme Court justice could trigger tectonic shifts in the nation’s political, social, economic and cultural landscape. Pending cases on the court’s docket focus on immigration reform, environmental policy, labor rights and affirmative action.

Black America, disproportionately struggling with serious economic and social problems related to all these issues, has a vested interest in the outcomes of many of these decisions. African Americans, for example, face continuing serious health problems from the lead that leeched into the Flint, Michigan, water system. State government and elected officials repeatedly ignored many of their early complaints about the city’s new water supply. These citizens of color were not the voters that the state government cared about.


Meanwhile, the 2013 Supreme Court Shelby v. Holder decision, which gutted the 1965 Voting Rights Act, has helped usher in a more restrictive and racially biased standard for poll access that may affect the 2016 presidential election. With this ruling, the court may have provided an unfair advantage to the Republican Party because it made going to the polls more difficult for African Americans, the poor and people of color — all crucial components of the new Democratic majority.

The contemporary crisis of race and democracy continues to be refracted through the 2016 presidential election. Polarized support for the insurgent candidacies of Trump and Senator Bernie Sanders (I-Vt.) exemplifies this phenomenon. Both constituencies, left and right, decry deepening inequality, a growing wealth gap and a fading American dream. Yet, the two campaigns are based on divergent interpretations of recent American history.

Voters cast their ballots in U.S. midterm elections in Ferguson, Missouri November 4, 2014. Black anger at a local Democrat's handling of the shooting of teenager Michael Brown in Ferguson, Missouri, has given the Republican candidate some hope of winning the race for St Louis County executive for first time since the 1980s. REUTERS/Whitney Curtis  (UNITED STATES - Tags: POLITICS ELECTIONS TPX IMAGES OF THE DAY)

Voters cast their ballots in U.S. midterm elections in Ferguson, Missouri, November 4, 2014. REUTERS/Whitney Curtis

Trump’s “Make America Great Again” mantra is both a slogan and an ethos that locates the loss of white male privilege and segregated industrial working-class enclaves in lax immigration enforcement, overly generous social-welfare programs, unnecessary affirmative action and the displacement of hard-working white workers by government policies obsessed with diversity and multiculturalism.

The “Sandernistas” offer a contrasting worldview. They contend that corporate greed run amok has led the nation astray from it postwar heyday of robust economic growth, high employment and wages, and New Deal-style social-welfare programs.

The black experience can be viewed through each of these interpretations in striking ways.

Black America is the literal bête noire of the Trump supporters’ narrative of American decline. Though the candidate has focused on undocumented workers as key to the vanishing middle class, he has received outspoken and vocal support from white hate groups, including the KKK.

Sanders’ outspoken stance on racial equality in the criminal justice system came only after Black Lives Matter protesters shamed him into belated racial consciousness. Sanders still does not support slavery reparations. The Vermont senator’s eloquent broadsides against economic inequality have convinced many progressives, including notable black commentators, that his vision of rising economic progress would be a boon to black workers and poor people.

U.S. Democratic presidential candidate Hillary Clinton greets supporters at the International Longshoremen's Association Local 1422 in Charleston, South Carolina February 24, 2016. REUTERS/Jonathan Ernst

Hillary Clinton greets supporters at the International Longshoremen’s Association Local 1422 in Charleston, South Carolina, February 24, 2016. REUTERS/Jonathan Ernst

In spite of these entreaties, Sanders is still facing an uhill fight in his pursuit of the African-American vote — as his disappointing results in Saturday’s South Carolina primary illustrate. Black Democratic voters favored former Secretary of State Hillary Clinton by a stunning 73.5 percent to 25.9 percent. This overwhelming black support suggests that African-American Democrats remain pragmatically attached to the Clinton brand. Despite Sander’s gaining some high-profile black support, rank-and-file African-American voters remain steadfastly devoted to Clinton. It is more than her embrace of Obama polices throughout this campaign, these voters perhaps remember how she closed ranks at the 2008 Democratic National Convention to support then-Senator Obama.

One way that Obama could influence the election’s outcome would be to nominate a black woman as Scalia’s replacement. It is long past due that a black woman serves on the nation’s highest court. One obvious choice is Loretta Lynch, the first black woman to serve as U.S. attorney general. Though her confirmation hearing was long delayed by the Senate, Lynch was eventually approved, 56 to 43.

Much has been made about the symbolic power of placing Rosa Parks or Harriet Tubman on the $10 bill, but appointing Lynch to the Supreme Court would be a more substantive sign of racial and gender progress in the 21st century.

If Obama has the courage to nominate Lynch as Scalia’s successor, we may witness the kind of watershed social progress and commitment to racial justice that the late justice sadly spent so much of his career opposing.


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“If Obama has the courage to nominate Lynch as Scalia’s successor, we may witness the kind of watershed social progress and commitment to racial justice that the late justice sadly spent so much of his career opposing.”

Aka tokenism – deeply demeaning to the court and, by extension, the nation at large.

Posted by Het_Russ | Report as abusive

The nation has benefited from Scalia’s death. In modern times there has been no one as destructive of the nation as Scalia. So, regardless of who gets to be the next SCJ we have improved the court. Even the GOP could not find someone as evil as Scalia, he was one of a kind. I expect Thomas to melt down and go soon too, now that his boyfriend is gone.

Posted by brotherkenny4 | Report as abusive

I have little hope given that some 52-56% of Americans believe the court is to liberal.

Posted by stevie1 | Report as abusive

Ms. Lynch may not need race related advantage given her sound qualifications for the job.

Posted by Mottjr | Report as abusive

Aka tokenism. I’m afraid we as a nation have not yet gotten past the point of tokenism. What do you think Scalia was when he got on the court or Sotormayor or Thomas. Each was picked not just for their abilities but for their backgrounds. When we can all be judged by the content of our hearts and the knowledge we have acquired then we will be on our way to form a more perfect union, we just aren’t there yet.

Posted by DaudM | Report as abusive


Posted by Laster | Report as abusive