For civil rights groups, Roe v Wade is reminder of supreme court’s limits
Civil rights attorneys are planning new approaches to advancing racial justice after the US supreme court’s decision to overturn Roe v Wade and recent rulings that have eroded civil rights victories.
Over its long history, the court has been viewed as a friend and a foe of racial progress. Last week’s decision to overturn a 50-year precedent in the landmark abortion case, signaled another turning point, said ReNika Moore, the director of the ACLU’s Racial Justice Program. She immediately saw how the decision would disproportionately imperil the lives of low-income and women of color, particularly Black women. She also saw the implications of the decision for cases where race is at the heart of the matter.
“It doesn’t bode well for how the court will treat those civil rights cases,” Moore said.
Overturning Roe v Wade opens the door for reconsidering precedents that have advanced civil rights over the past century, from school desegregation to voting rights to affirmative action, legal scholars and civil rights advocates say. The decision also underscores that the court, which hears about 1% of cases petitioned annually, has thwarted as much as it has supported civil rights over the decades.
“The epicenter of action is shifting,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Civil rights groups cannot solely rely on the courts and must instead renew a focus on building coalitions with other groups and lobbying, in addition to pursuing litigation, he said.
In many ways, that has always been the strategy, said H Timothy Lovelace Jr, professor of law and history at Duke University School of Law. Prominent civil rights attorneys like Thurgood Marshall, who became the first Black justice in 1967, saw the supreme court as a “beacon of hope” for the advancement of civil rights. They saw the political process largely as closed off to Black Americans and turned to the courts to get a “fair shot at advancing racial justice”, Lovelace said.
By the 1960s, as the student-led protests swept the nation, an uneasy marriage between civil rights attorneys and some activists occurred. Julian Bond and John Lewis, then members of the Student Nonviolent Coordinating Committee (SNCC), were critical of the slow pace of litigation. They were part of a generation of civil rights activists who came after Marshall and put their bodies on the line through protest, voter registration drives and other direct action in the south.
The rise of movement-oriented lawyers like Howard Moore Jr, who worked as a counsel for SNCC, emboldened activists who saw lawsuits as supporting, rather than supplanting, grassroots organizing, says Lovelace, who is also the John Hope Franklin research scholar at Duke law school. Beyond representing jailed activists, including Angela Davis, Moore helped with voter organizing drives and, in the supreme court case Bond v Floyd, represented Bond, who was blocked by Georgia lawmakers from taking office in the legislature for supporting SNCC’s stance against the war in Vietnam.
Today’s civil rights attorneys draw more from SNCC’s school of thought, viewing litigation as a tool in the arsenal. “[They] are students of these past struggles,” Lovelace said. “They understand that courts are limited at ensuring racial justice.”
Hewitt agrees. “We got here through the sweat, tears, and sometimes blood of people who were putting their lives on the line in peaceful protest. We got here from the blood of civil rights martyrs who were killed for doing nothing except for exercising their constitutional rights. We got here because of political pressure as well.”
For most of its history after Reconstruction, the federal court has been hostile toward civil rights, attorneys say. In 1896, in Plessy v Ferguson, the supreme court upheld racial segregation, a decision that stood for decades. Even then, Lovelace says, civil rights activists focused on “racial uplift within Black communities” and didn’t see litigation as the agent for social change given the court’s “antagonism to the struggle of racial justice”.
Then, the NAACP, under its first general counsel Charles Hamilton Houston, who worked with his protege Thurgood Marshall, pursued test cases to chip away at racial segregation, which eventually led to eliminating white primaries in Smith v Allwright in 1944 and racial desegregation in public schools in Brown v Board of Education in 1954. Still, the pursuit of racial progress in the courts has often led to backlash from white Americans and the court itself.
By 1973, after Richard Nixon appointed four justices to the supreme court, they decided in Milliken v Bradley to curtail federal authority to enforce desegregation, leaving it to cities and counties to ensure that schools were integrated. “The very evil that Brown was aimed at will not be cured but will be perpetuated,” then Justice Marshall wrote in a dissenting opinion.
“That history painfully shows that while the court had an important role in checking some of the worst abuses, the court was never in and of itself going to be able to heal the wounds of white supremacy,” says Samuel Spital, director of litigation at the NAACP Legal Defense and Educational Fund. “That requires a much deeper and sustained level of organizing and collective action by people as a whole.”
Hewitt notes that the court has grown increasingly conservative in the last three decades he has worked as an attorney. What’s unique now is that the conservative justices’ opinion in Dobbs v Jackson Women’s Health Organization was a “disturbing” reversal of previously upheld constitutional rights. “It’s just stunning and shakes the foundation of everything that we’ve been led to believe about the constitution and about this country,” Hewitt said.
Following the Dobbs decision, he and his staff have discussed how to work with reproductive rights organizations, though no firm plans are underway. “We have a lot of organizations but not enough movement in this country,” Hewitt said. “This calls for us to come together with shared goals.”
Lovelace notes that the court under Chief Justice John Roberts has undermined racial justice progress. “If activists wait for the court to act, it may be decades before it responds in a way that advances racial justice,” Lovelace said, pointing to its decision to gut the Voting Rights Act in Shelby County v Holder.
In October, the court will hear arguments in an Alabama redistricting case that will determine whether Black voting power will be diluted. On Thursday, the court announced that it would hear a North Carolina case that could give states wide latitude in setting election rules and potentially leave gerrymandering unchecked.
And the court has also agreed to hear affirmative action cases against Harvard University and the University of North Carolina that could upend the use of race in college admissions. Hewitt, whose group represents Black and Latino students who intervened in the University of North Carolina case, cautions the conservative majority’s actions gives a sense that “no precedent is safe”.
Moore of the ACLU says the supreme court’s relationship with civil rights is defined by ebbs and flows – and regression.
“When we think about Brown v Board of Education, that case was decided in 1954, and schools are more segregated than at any other time,” Moore said. “There have been huge gains and opportunities for Black children and children of color. But we’re still seeing stark divisions about the kinds of education that a child accesses because of race. That tells us there’s undeniably progress and undeniably still work to be done.”