As the U.S. Supreme Court enters another season of last-minute rulings, Americans are faced with an eternal question: what is the limit of compliance, and what is open to challenge?
It is crucial to remember that the Supreme Court never has the final say; the people do. And structural concepts like federalism make disagreement on fundamentally important issues like equality not only encouraged, but essential to national self-governance. One thing is certain: judicial districts can be more committed to equality than the judges themselves. This is a valuable fact to remember as the Supreme Court's priorities and ideological leanings become increasingly misaligned with those of much of the nation.
Consider one of the court's most harrowing moments, the 1987 case of McCleskey v. Kemp. In the early 1980s, studies had uncovered huge racial disparities in Georgia's death penalty, including that people charged with killing a white person were 4.3 times more likely to receive the death sentence than those charged with killing a black person. Lawyers presented this evidence in the case of Warren McCleskey, a black man convicted of killing a white police officer, trying to convince the justices that Georgia was failing to give its black citizens equal protection under the law.
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Instead, the justices ruled 5-4 against McCleskey. The decision sought to insulate the nation's criminal justice system from structural inequality lawsuits. To most observers, this appeared to be a crushing defeat for the cause of racial justice. Indeed, Justice Lewis Powell privately told his colleagues that they had to find a way around the “statistical doctrine” that encouraged them to question other aspects of the justice system, and Justice William Brennan accused his colleagues of demonstrating an “excessive fear of justice.” Thus, despite studies that demonstrated alarming racial disparities in executions, the court ruled that further evidence of bias was necessary to set aside the conviction. McCleskey failed to meet this high standard and was ultimately executed.
Justice Powell protected the prosecutor's power because he believed racial disparities were inevitable in any system involving discretionary power. In the wake of McCleskey, advocates could have agreed with the Supreme Court's very narrow concept of equality, which did not acknowledge structural inequality, but only sporadic acts of individual misconduct. But when advocates realized that the Supreme Court was not going to protect their clients from exposure to unequal justice, they clung to a stronger concept of racial equality. They stepped up their efforts to document structural inequalities by demanding access to prosecutors' files, and they criticized prosecutors and judges who excluded people of color from potential juries.
The Southern Center for Human Rights was at the center of the next phase of the fight for racial justice. Bryan Stevenson, who later founded the Equal Justice Initiative, was then a young staff attorney at the Southern Center. Stevenson was “heartbroken” by the McCleskey case and couldn't believe that the same body that decided Brown v. Board of Education had said that racial discrimination was inevitable in our legal system. But after talking with Executive Director Steven Bright, Stevenson and other staff members came up with a plan.
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Judge Bright agreed that McCleskey was “an eternal stain on the Supreme Court” and that it was similar to Plessy v. Ferguson in allowing one kind of justice for whites and another for blacks. He advised his staff to turn the ruling's shield for the prosecution into a sword for the defense. They began filing so-called “McCleskey motions,” seeking an opportunity to examine the judge and prosecutors' ability to treat defendants fairly, insisting on hearings to document forms of social and official racism, and requesting access to other case files to look for patterns of bias against the poor and racial minorities.
The strategy worked. In the 1987 retrial of George Dungy, a black man charged with murdering a white family in Georgia, the Southern Center argued for the judge's recusal because he had used the N-word in open court to refer to the defendant, supported a racist in a gubernatorial election, and participated in the prosecution's efforts to exclude black jurors. Accused of being part of a local “system of white supremacy,” the judge was forced to resign. When prosecutors found that their judicial allies were no longer working the case, they offered Dungy a plea deal that would have guaranteed him a life sentence. The same thing happened in the retrial of Willie Gamble. Southern Center lawyers called the judge a “knee-jerk racist,” and the state relented and rescinded the death penalty shortly after the judge recused.
In the 1988 case of Berryhill v. Zandt, the Southern Center won a challenge to a policy that allowed only “upstanding and intelligent” citizens to serve on juries, a policy that was highly subjective and allowed local authorities to unfairly exclude women. And in the retrial of William Anthony Brooks, a black man accused of murdering a white woman, the Center argued that Brooks did not receive a fair trial because two prosecutors who later became judges had manipulated the all-white jury and engaged in “lynch mob-like arguments.” They requested the appointment of a judge from another circuit.
Instead of giving up on statistical evidence to prove racial discrimination, the Center continued to develop empirical evidence of structural inequality in two ways: first, by demonstrating that women and racial minorities are still grossly underrepresented among potential jurors in certain counties, and second, by showing how certain prosecutors, and sometimes entire prosecutor's offices, craft all-white juries.
The strategy's biggest success came in 1991, when the Eleventh Circuit Court of Appeals ruled in Horton v. Zandt that prosecutors had used summary exclusion to systematically eliminate black jurors, particularly in cases involving black people accused of killing white people. SCHR officials' painstaking work documenting the state's long-standing unequally valuing black and white lives led the court to order a new trial for Horton. In his decision, Judge Frank Johnson emphasized that “prosecutors have a duty to do justice.”
With Horton, racial justice advocates finally won a legal victory and revealed how prosecutors had exploited an unequal justice system. Importantly, the Southern Center never accepted the Supreme Court's presumption that racial inequality was caused by bad people, but instead argued that a series of overlapping practices led to injustice.
In addition to litigation, some have raised the issue of racial injustice, persuaded elected officials to publicly censure Judge McCleskey, and launched legislative challenges to the Supreme Court. On these occasions, lawmakers rejected Justice Powell's advice to accept the inevitability of racial discrimination, arguing that ignoring racial disparities exacerbates a crisis of confidence in the rule of law.
Several states have enacted racial justice laws, but none are as far-reaching as the law passed in California.
The California Racial Justice Act (CRJA), enacted during the pandemic, gives individuals the ability to challenge convictions based on race, ethnicity, or national origin. Supporters of the civil rights law described it as a “countermeasure to address the widely criticized 1987 precedent, McCleskey.” Lawmakers noted that “we cannot accept the harsh reality that race permeates our justice system,” and that “discrimination undermines public confidence in the impartiality of the state's justice system.”
The law throws out McCleskey for Californians and empowers individuals to present statistical evidence showing that “prosecutors were more likely to seek or obtain convictions against people of the same race, ethnicity, or national origin as the defendant.” The law goes further than the Supreme Court's decision by making it easier to prove that prosecutors used race-based exclusionary methods.
Will the Supreme Court ever overturn McCleskey? Probably. But with justices who are open to criminal justice reform on the bench, it will be easier to convince them that they made a serious error. And it will take a little progress in the states to expand people's commitment to racial equality and for the justices to realize that their ruling is an outlier. Then the justices may feel pressured to change their minds and join the rest of the political community.
Robert L. Tsai is a professor of law at Boston University and author of Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All (Norton 2024).
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about TIME's Made by History here. Opinions expressed do not necessarily reflect the views of TIME editors.
