us supreme court & civil rights evidence

only 4.4 and 4.5 done

lack of republican support for AA

since the nixon ‘southern strategy; it has consistently opposed race-baseed AA, calling it ‘reverse discrimination’, 2020 and 2024 GOP platforms explicitly rejected race-based preferences in education and employment

democrat caution towards AA

they have avoided strong support due to electoral risk- clinton 1995 said ‘mend it, don’t end it’ acknowledging AA but calling for limits and the biden administration avoided legislative expansion of AA

support for AA by parties

BLM protests involved 15-26m americans and pushed racial inequality back onto political agenda, democratic emphasis on it in 2020 party platform and growth of congressional progressive caucus (~100 members by 2023) increased internal democratic pressure to defend AA

state bans on AA

9 states (eg california, michigan, florida) banned AA via ballot initiatives, 1996 california proposition 209 banned race-based preferences in public education and employment

lack of state bans on AA

41 states have not banned it despite having initiative mechanisms and california voters rejected proposition 16 in 2020 which would have repealed the AA ban

SC against AA

• gratz v bollinger 2003 struck down automatic point-based AA

• students for fair admissions v harvard 2023

SC defending AA

• grutter v bollinger 2003 allowed race to be considered if it was ‘a factor, not the factor’

• shows AA was tolerated for 20 years, though now reversed

minority representation in congress

AAs are 13.6% of US population and 13% of the house, hakeem jeffries in 2023 became the first black house minority leader

minority representation in executive and judiciary

obama elected in 2008 and 2012, ketanji brown jackson appointed to SC in 2022 (first black female justice)

lack of minority representation in republican party

fewer than 5 black republicans served in congress until 2023, republican leadership is overwhelmingly white

social successes and failures of AA

• minority enrolment in universities increased significantly from 1970 to 2010

• greater visibility of minorities in law/medicine/media leadership

• students for fair admissions v harvard 2023 shows AA has deepened racial resentment

economic success of AA

black middle class grew significantly between 1967 and 2017 and hispanic home ownership rates rose steadily post 1990s

economic failures of AA

median white household wealth remains 6-7x higher than black household wealth- AA benefits a minority elite rather than structural equality

discrimination continues through voting rights

• shelby county v holder 2013

• voter ID laws in states like texas and georgia as recently as 2021

• racial gerrymandering

voting rights are legally protected

• voting rights act still exists, section 2 upheld by allen v milligane 2023

• all laws constitutionally permissible; laws are applied equally regardless of race

discrimination continues through immigration

• bipartisan enforcement- obama deported around 3m migrants and trump expanded enforcement/border restrictions

• policy gridlock- no pathway to citizenship for undocumented migrants still

living constitution is superior for coping with modern circumstances

• riley v california 2014 applied 4th amendment to modern digital technology

• reno v ACLU 1997 applied 1st amendment free speech protections to the internet

• allows evolution of constitutional principles

originalism can still cope with modern circumstances

• 2008 DC v heller interpreted 2nd amendment based on 18th century meaning but applied it to modern firearms

• US v jones 2012 used property-based interpretation to limit GPS tracking

• old principles are applied to new contexts without rewriting the constitution

living constitution is more honest

• brown v board 1954 overturned plessy v ferguson 1896 despite segregation being accepted when the constitution was written

• obergefell v hodges 2015 used evolved interpretations of 14th amendment

originalism is more objective (even if less honest)

• dobbs v jackson 2022 overturned roe v wade arguing abortion rights were not deeply rooted in US history

• antonin scalia, previous SC justice, argued originalism constrains judges by anchoring decisions to historical meaning not personal morality

living constitution protects rights better

• lawrence v texas 2003

• brown v board 1954

• obergefell v hodges 2015

originalism can be favoured as neither that nor living constitution guarantees rights

• originalism led to crawford v washington 2004 that strengthened rights using original meaning of the 6th

• living constitution restricted rights in korematsu v US 1944 which upheld japanese internment using flexible interpretation

SC enforces protection of civil liberties

• judicial review established in marbury v madison 1803

• brown v board 1954

SC cannot always enforce civil liberties

• brown v board faced massive resistance, full desegregation needed civil rights act 1964 and federal troops

• constitutional amendments override SC- 11th overturned chisholm v georgia

SC can interpret constitution

• roe v wade extended privacy to abortion decisions

• lawrence v texas used liberty clause to protect sexual autonomy

SC is limited by ideology

• dobbs v jackson due to conservative majority

• shelby county v holder weakened voting rights act 1965

judicial activism protects liberties

• gideon v wainwright 1963 guaranteed right to legal counsel

• warren court (1953-69) was very activist- brown v board, gideon v wainwright, miranda v arizona

judicial restraint limits protection of liberties

• trump appointees means SC now 6-3 conservative majority

• rehnquist court (1986-2005) more deferential to states and congress