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Potential to Roll Back The New Jim Crow at the Supreme Court

Seems BTx3 isn’t the only one who sees Scalia’s death as one of the two best things that could have happened to the Supreme Court.

Sill waiting on the second…Any moment now would be fine.

Law students of color hope to see civil rights ally named to Supreme Court

Tahir Duckett, a student at Georgetown University Law Center, was 2 years old when Antonin Scalia was appointed to the Supreme Court in 1986.

Naji Mujahid, who attends the University of the District of Columbia’s law school, was 4. Dominique Moore, a student at Temple University’s law school, and Stephanie Llanes, a law student at the University of California at Berkeley, had not yet been born.

Now, Scalia is gone, dying unexpectedly during a vacation last week. And for the first time in the students’ lives — three of whom are African American and one a Latina — there is a possibility of having a Supreme Court that is no longer dominated by right-wing ideologues who are astoundingly naive about racism in America.

“We mourn the death of Justice Scalia, as a fellow attorney,” said Moore, 29, the Mid-Atlantic regional chair of the National Black Law Students Association. “But we are looking for someone to fill that seat who is not a foe of civil rights and wants to see the country make progress, not take it backward.”

Next month, the 3,600-member national organization convenes in Baltimore for its annual convention. Attorney General Loretta E. Lynch is scheduled to deliver the keynote address.

“We support Loretta Lynch’s appointment as the next Supreme Court justice,” Moore said.

For his part, Georgetown’s Duckett, 32, has been chronicling the harms done by the Supreme Court’s 2001 ruling in Sandoval v. Alexander. The court held that the Civil Rights Act of 1964 prohibits only “intentional discrimination” and does not prohibit activities that have a “disparate impact on certain races, colors, or nationalities.” Scalia wrote the opinion for the conservative majority, which included Chief Justice William H. Rehnquist.

“That ruling made it impossible to mount a legal challenge to structural racism and sent a message that it was okay to discriminate against blacks and Hispanics as long as you did it with a wink and a nod,” said Duckett, a member of the D.C. chapter of the legal and policy collective known as Law for Black Lives. “For more than a decade and a half, we’ve watched racial disparities widen in incarceration, in the use of the death penalty, in racial profiling, in the enforcement of drug laws, and it was legally okay just because nobody had come right out and said they were doing it intentionally.”

UDC’s Mujahid, 34, said he began studying Scalia’s thinking in 2009, while following the case of Troy Davis, a black man who had been convicted of murder in Georgia and sentenced to death. When seven of the nine witnesses recanted their testimony against him, Davis appealed to the Supreme Court for a new hearing and got it. But Scalia objected, writing in his dissent that “this court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

Scalia’s statement was said to be legally correct but widely regarded as morally weak. Davis was executed two years later.

“When you go into Scalia’s thinking as an ‘originalist,’ meaning someone who interprets the Constitution by divining the intent of the Framers at the time they wrote it, you can see Scalia virtually channeling 18th-century social and political sentiment on race,” said Mujahid, president of the UDC chapter of the National Lawyers Guild. “If you want to go back 200 years and commune with the spirit of slave owners and ask them, ‘What do you think of black people?’ Or, ‘How do you feel about affirmative action?’ what the hell do you think they’re going to say?”

In the wake of Scalia’s death, SCOTUS blog legal expert Lyle Denniston described the 79-year-old Reagan appointee “as path-breaking as Earl Warren” and “as controversial as Roger Taney,” among other things.

But his mentioning Chief Justices Warren and Taney cries out for comparison.

The Warren Court expanded civil rights, most famously in the 1954 Brown v. Board of Education case that banned racial segregation in public schools. The Taney Court, on the other hand, ruled infamously in the 1857 Dred Scott case that no black person, whether slave or free, would ever become a citizen.

And given Scalia’s originalist approach to the law, some legal scholars have suggested that he would probably have reached conclusions more like Taney’s than Warren’s.

 

 
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Posted by on February 23, 2016 in The New Jim Crow

 

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