We are Part of the Problem They Protest - State supreme court judges are starting to grapple publicly with the racial injustices in the criminal justice systems they oversee.
If after reading the 10th (or 50th) pledge of corporate solidarity with the anti-police brutality protests your eyes are hurting from rolling so much, you’re not alone. Nike? Check. Netflix? Check. Peloton? Check. The revolution has been focus-grouped.
“Together we stand,” Amazon says, in stark white letters against a somber black background, “against systemic racism and injustice.” Great to hear.
So it has been striking to read the growing stream of anguished public statements in recent days coming from another, unexpected source: chief justices at the highest state courts across the country, often joined unanimously by their colleagues.
Judges are notoriously averse to saying anything in public beyond the words of their rulings. In normal times, that’s prudent; courts cannot appear to be taking sides on contested issues of public policy, especially ones they may be called to decide in the future.
But these are not normal times. And the justices’ highly unusual statements exist in their own space, far from the tweet-size virtue signaling of multinational corporations. They are not trite expressions of sympathy or solidarity, nor rote reiterations of the judiciary’s commitment to equal justice under law. Some are several pages long; most grapple directly with the American legal system’s central role in perpetuating racial inequality and injustice.
“We are part of the problem they protest,” Chief Justice Bernette Joshua Johnson of the Louisiana Supreme Court wrote on June 8. “I firmly believe in the rule of law. But its legitimacy is in peril when African-American citizens see evidence every day of a criminal legal system that appears to value Black lives less than it values White lives.” She continued, “Is it any wonder why many people have little faith that our legal system is designed to serve them or protect them from harm? Is it any wonder why they have taken to the streets to demand that it does?”
Chief Justice Cheri Beasley of the North Carolina Supreme Court went further. “It is shocking to see our workplaces, businesses and community spaces damaged,” she said of the rioting and looting in cities like Raleigh and Charlotte. And yet “we must decry the failures of justice and equity just as forcefully as we decry violence. It is not enough to say to protesters, ‘Go home and follow the rules.’ It’s not that simple.”
Chief Justice Beasley is black, as is Chief Justice Johnson, and both invoked their personal experiences in framing their messages. But similar statements have come from white judges. Clemens A. Landau, the presiding judge of Utah’s Salt Lake City Justice Court, wrote, “We are painfully aware that municipal courts like ours have historically been situated on, or at least very near, the tip of systemic racism’s spear.”
As of June 16, statements had also come from the chief justices or full high courts of Massachusetts, Oregon, Washington, Kentucky, Indiana, Georgia, Alaska, New Jersey, California, Connecticut, Maryland, New York, Hawaii, Maine and the District of Columbia. More are likely to come in the days ahead.
It’s understandable to want to dismiss these remarks, like the glib corporate testimonials, as little more than nice sentiments with no legal force. But it is important to take note when those in power name the problem, admit their own complicity and acknowledge their special burden to fix it.
In a unanimous letter addressed to the judges and the broader legal community of Washington State, the justices of the Supreme Court there wrote: “As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong — but we can recognize our ability to do better in the future.”
This isn’t the first time state supreme courts have used their platform to influence public policy. Many, for example, have led the way in making it easier for poorer Americans to get a good lawyer and a fair process. But racial bias and inequality are at the heart of so much of the legal system’s failure of justice.
“Racism and anti-blackness have always operated and continue to operate under color of law,” L. Song Richardson, dean of the law school at the University of California, Irvine, told me. Ms. Richardson, who studies implicit racial and gender bias in policing, said, “Part of the reason we’re where we are today is that laws and judges have played their part in being the architects of oppression.”
That architecture consists of a criminal-justice system that took shape largely in the Jim Crow era and that is reinforced today by judge-made doctrines like qualified immunity, which makes it almost impossible to hold law-enforcement officers and their supervisors accountable for violating Americans’ civil rights or even killing them. The combined effect is that the courts have allowed police violence, toward black people in particular, to spiral unchecked.
The injustices don’t stop there, of course. From policing to prosecution to jury selection to incarceration to parole and probation, the evidence of disparate treatment of black people in the criminal-justice system is overwhelming and irrefutable. And because more than 95 percent of litigation flows through state courts — not including traffic court — how those courts understand their job and decide cases will be crucial to establishing any lasting systemic reforms.
As good as it is to see all these statements, they must be translated into concrete action. “I want to see what decisions they hand down,” said Ian Millhiser, a legal analyst at Vox and the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”
Some of those changes will have to come from the top. The United States Supreme Court started qualified immunity, for instance, and it can end it — as litigants and politicians from both sides of the aisle have been begging it to do for years.
Unfortunately, Chief Justice John Roberts, backed by a now-solid conservative majority, has exhibited a conception of race in America that is, to put it gently, naïve. In a 2007 school-desegregation case, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Mr. Millhiser rejected that logic: “There are problems in society that you can’t get your head around unless you realize that many of the people affected by them are black or brown. Trying to solve racial problems when you can’t acknowledge race is like trying to write a novel without using the letter ‘e’. You’re going to achieve a much better result if you’re allowed to talk about the thing you’re talking about.”
Whatever the nation’s highest court does or fails to do, the judiciary’s ultimate salvation will depend on Americans believing in its promises of independence, fairness and equal justice — and on looking at the courts and seeing themselves. In an interview last week, George Floyd’s second-grade teacher shared a drawing Mr. Floyd had made decades ago, as an 8-year-old. It was an image of himself as a grown man, sitting behind a bench and wearing a black robe. Next to the drawing, he had written, “When I grow up, I want to be a Supreme Court judge.”
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