{"id":2677,"date":"2023-04-30T20:54:33","date_gmt":"2023-05-01T00:54:33","guid":{"rendered":"https:\/\/www2.law.temple.edu\/lppp\/?p=2677"},"modified":"2023-04-30T20:54:37","modified_gmt":"2023-05-01T00:54:37","slug":"the-court-cannot-and-should-not-be-neutral-when-laws-discriminate-on-the-basis-of-race-or-sex","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/lppp\/the-court-cannot-and-should-not-be-neutral-when-laws-discriminate-on-the-basis-of-race-or-sex\/","title":{"rendered":"The Court Cannot and Should Not be Neutral When Laws Discriminate on the Basis of Race or Sex"},"content":{"rendered":"\n

Mary Kate Martin, JD Anticipated May 2024<\/strong><\/p>\n\n\n\n

In recent U.S. Supreme Court decisions, and in arguments before the Court, the case has been made that the Court should be neutral. The petitioners in a pending affirmative action case<\/a> have argued that colleges should be color blind in their admissions because the Constitution demands colorblindness. Additionally, Justice Kavanaugh\u2019s concurrence in Dobbs<\/em><\/a> argued that overruling Roe v. Wade<\/em> was necessary to\u00a0place the Court back in a neutral position. I argue that the Court cannot and should not be neutral in race and abortion cases. America certainly is not neutral when it comes to issues of race and gender. As the only non-political branch, the Court needs to act as a counter-majoritarian force and ensure equal protection of the laws for those that have been historically disadvantaged.<\/p>\n\n\n\n

The idea of colorblindness ignores the past history of discrimination in the United States and ignores the fact that discrimination continues to this day. I begin by arguing that the tiers of scrutiny used in equal protection cases acknowledge that the Court should not be neutral, but rather must take a harder look at government action that discriminates against a group that has been historically disadvantaged. Then, I turn to the Brown<\/em> decision and its aftermath as an example of the Court taking remedial action in a situation where staying neutral could would have simply resulted in the continuation of segregated schools. Lastly, I argue that the Court should go farther than acting solely when there is a history of discrimination and recognize that there continues to be rampant discrimination against people of color and women that the Court should address. \u00a0<\/p>\n\n\n\n

When the Constitution was drafted, there were no provisions assuring equal protection of the laws, which makes sense given that when the Constitution was drafted, the United States still had slavery and only white men (with property) could vote. After the Civil War, the Fourteenth Amendment<\/a> was ratified, which included the provision that, \u201cNo state shall deny to any person within its jurisdiction the equal protection of the laws.\u201d Equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. The Court applies different levels of scrutiny for equal protection cases based on how the law is discriminating among groups of people. The Court recognized that immutable characteristics, including race, national origin, and gender, warrant heightened scrutiny. In their inquiry, the Court also looks to the history of discrimination against the group and their ability to protect themselves through the political process.<\/p>\n\n\n\n

Discrimination based on race or national origin is subject to strict scrutiny, and a law will only be upheld if it is proven necessary to achieve a compelling government purpose and that the government cannot achieve its objective through any less discriminatory alternatives. The government has the burden of proof in cases of strict scrutiny. Intermediate scrutiny is used for discrimination based on gender and for discrimination against nonmarital children. Under intermediate scrutiny, a law is upheld if it is substantially related to an important government purpose. This means the law must have a substantial relationship to the end being sought, and the government has the burden of proof. Any other law is subject to rational basis review, in which a law will be upheld if it is rationally related to a legitimate government purpose. The government\u2019s objective needs to be something that the government legitimately may do, and the means chosen need to be a rational way to accomplish the end. The challenger has the burden of proof in rational basis review. The tiers of scrutiny show that the court cannot and should not be neutral when it comes to cases based on discrimination against individuals based on immutable characteristics.<\/p>\n\n\n\n

The tiers of scrutiny also allow the Court to strike down laws that are solely based on prejudice or stereotypes. Unfortunately, the federal and state governments still try to pass laws based on prejudice and without a legitimate government purpose. Tennessee passed an anti-drag bill<\/a> under the guise or protecting children while refusing to act on guns<\/a>, which are the number one killer of children. Justice Kennedy<\/a> remarked in Romer <\/em>that \u201c[i]f the constitutional conception of equal protection is to mean anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.\u201d The Court needs to go beyond neutrality and take a harder look at laws based on biases or a desire to harm an unpopular group. \u00a0Stated another way by Justice White<\/a>, \u201cPrivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.\u201d \u00a0<\/p>\n\n\n\n

In reality, the idea of neutrality seems to be to give decisions back to the states, which allows the Court to avoid getting involved in remedying laws that discriminate against historically disadvantaged groups. If the Court had remained neutral in the aftermath of the Brown v. Board of Education<\/em> decision, southern states likely would have never desegregated their schools. After the decision in Brown v. Board of Education<\/em>, the Court needed to take remedial action to ensure that the decision was implemented. Southern legislatures adopted resolutions that declared the Supreme Court\u2019s decisions were without effect, and state officials worked to obstruct the desegregation of schools in any way they could. In Brown II<\/a>, the Supreme Court remanded cases to the District Courts to \u201cto take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.\u201d The Court<\/a> invoked Marbury v. Madison <\/em>to dispel the states\u2019 claims that they did not have to follow the Supreme Court decision. The Court<\/a> also ruled against counties where schools closed their public schools rather than desegregate. \u00a0If the Court had remained neutral in the aftermath of Brown<\/em> and left the decisions of how to desegregate to the states, then it is likely the southern states never would have desegregated. The Equal Protection Clause and tiers of scrutiny recognize that the Court needs to go further to address discrimination.<\/p>\n\n\n\n

Today, people of color and women are still largely underrepresented in Congress and the executive branch. Although this is the most diverse Congress yet, people of color only make up one quarter of Congress, and women only represent 28 percent<\/a>. Because of this, as the only non-political branch, the Court cannot stay neutral. It must take affirmative steps to remedy laws that discriminate against historically disadvantaged groups. The Court\u2019s ability to take remedial action was greatly diminished after the Milliken decision<\/a> held that a remedy can only be imposed where it has been shown that racially discriminatory acts of the state or local school districts or of a single school district have been a substantial cause of interdistrict segregation. Justice O\u2019Connor<\/a> wrote that, \u201cThe unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.\u201d I argue that discrimination based on race and gender is inherent in the structure of the United States. The original seven Articles of the U.S. Constitution include express references to upholding the institution of chattel slavery. \u00a0The proper role of the court should not be neutrality and extreme deference to the other branches, but to take a hard look at laws that discriminate against historically disadvantaged groups and invalidate those which are based on bias.<\/p>\n","protected":false},"excerpt":{"rendered":"

Mary Kate Martin, JD Anticipated May 2024 In recent U.S. Supreme Court decisions, and in arguments before the Court, the case has been made that the Court should be neutral. The petitioners in a pending affirmative action case have argued that colleges should be color blind in their admissions because the Constitution demands colorblindness. Additionally, Justice Kavanaugh\u2019s concurrence in Dobbs argued that overruling Roe v. Wade was necessary to\u00a0place the Court back in a neutral position. I argue that the … <\/p>\n

Read More<\/a><\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4],"tags":[],"coauthors":[67],"class_list":["post-2677","post","type-post","status-publish","format-standard","hentry","category-blog","infinite-scroll-item","masonry-post","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-50"],"yoast_head":"\r\nThe Court Cannot and Should Not be Neutral When Laws Discriminate on the Basis of Race or Sex - Law & Public Policy Program<\/title>\r\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\r\n<link rel=\"canonical\" href=\"https:\/\/www2.law.temple.edu\/lppp\/the-court-cannot-and-should-not-be-neutral-when-laws-discriminate-on-the-basis-of-race-or-sex\/\" \/>\r\n<meta property=\"og:locale\" content=\"en_US\" \/>\r\n<meta property=\"og:type\" content=\"article\" \/>\r\n<meta property=\"og:title\" content=\"The Court Cannot and Should Not be Neutral When Laws Discriminate on the Basis of Race or Sex - Law & Public Policy Program\" \/>\r\n<meta property=\"og:description\" content=\"Mary Kate Martin, JD Anticipated May 2024 In recent U.S. Supreme Court decisions, and in arguments before the Court, the case has been made that the Court should be neutral. 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