Scalia is Wrong: 10 Supreme Court Cases That Show How the Court Can Advance Racial Equality

The Supreme Court’s hearing on the Voting Rights Act Wednesday was a timely reminder of how conservative Justices like Antonin Scalia view equal rights. More alarming than his “racial entitlement” comment was his follow up: “This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress.”   

One wonders which Supreme Court Scalia is talking about that stays out of “racial questions”: the Supreme Court has played a major role in settling questions of racial justice since the Supreme Court was first created. 

Here are ten cases in which the Supreme Court decided to “get involved with racial questions,” all landmark cases that changed the face of racial justice in the U.S. 

1. Loving v. Virginia (1967)

One of the most powerful cases to end racial discrimination, Loving v. Virginia challenged the constitutionality of bans against interracial marriage. The Court legalized interracial marriage in its decision and allowed Mildred and Richard Loving, who “were in love, not fighting a civil rights battle” to be married without legal repercussion. 

2. Smith v. Allwright (1944)

One of the earliest cases the Court heard on discrimination in access to primaries, in Smith v. Allwright, it was ruled that parties could not limit its primary to white voters.  

3. Heart of Atlanta Motel v. United States (1964)

Part of a wave of pivotal civil rights decisions made in the 1960s, the Supreme Court ruled that the Hearts of Atlanta Motel could not discriminate based on race in whom it would rent rooms to, and that Congress could use the commerce clause to hold private businesses accountable to the Civil Rights Act of 1964. 

4. Lau v. Nichols (1973)

Lau v. Nichols launched the modern bilingual education system, when 12 Chinese American students who did not speak English launched a class action suit against the San Francisco school district, contending that they were being denied the right to equitable education.  The Supreme Court was unanimous in deciding that the state had discriminated against these students based on their first language, and the ruling greatly expanded access to education for students learning English as a second language. 

5. Batson v. Kentucky (1986)

The Court’s ruling on Batson v. Kentucky helped end practices of discriminatory jury selection. By restricting the use of preemptory challenge, or the dismissal of juries by the prosecutor without a stated reason, the Court helped mitigate practices of creating all white juries for black defendants. 

6. Grutter v. Bollinger (2003)

The University of Michigan Law School, like many institutions of higher education, uses race as a factor in admission criteria, serving as a “compelling interest in achieving diversity among its student body.” In 2003, Barbara Grutter challenged this consideration as unconstitutional, but the Supreme Court held that race was justifiable to examine in admission selections

7. Jones v. Mayer Co. (1968)

In St. Louis in the 1960s, the Jones couple attempted to buy a house in a predominantly white neighborhood and was denied. The Supreme Court ruled any racial discrimination in the rental or sale of property, the great American preoccupation, was unconstitutional

8. Korematsu v. United States (1944)

The Supreme Court has always weighed in on racial justice policies, but it’s not always on the side of the angels. Nonetheless, it’s clear that the Supreme Court has always played a significant role in determining the constitutionality of policies surrounding race. Fred Korematsu was arrested in San Francisco after defying the military order for all Japanese Americans to report to internment camps. In 1944, the Court ruled that the incarceration of Japanese Americans was not racism, but warranted based on claims by the U.S. military that Japanese Americans were potentially engaging in espionage.

9. Shelley v. Kraemer (1948)

The Supreme Court discussed racism in property laws decades before Jones v. Mayer Co.  The Shelleys were a black couple who moved into a St. Louis neighborhood in spite of a private contact that kept black families out of the real estate market in the area. The Kraemers, a white couple, resided in the neighborhood and took the issue to the state courts, eventually culminating in the Supreme Court’s decision that states could not uphold racially discriminatory property agreements. 

10. Brown v. The Topeka Board of Education (1954)

The classic example of the Supreme Court’s landmark decisions on racial justice, Brown v. Board of Education mandated the desegregation of schools and changed the face of civil rights in the U.S., undermining the “separate but equal” clause of Plessy v. Ferguson of 1896 (another example of the Court’s willingness to weigh in on racial questions, but of course one with far more damaging consequences for civil rights). 

It’s a good thing that Scalia’s wrong, and that the Court does weigh in on “racial questions”: otherwise, civil rights for all people would be an even more distant goal. We can only hope that Justices remember these cases, and the imperative of the Supreme Court in protecting equality, when deciding the fate of the Voting Rights Act.