Imagining a More Just Supreme Court

Thurgood Marshall. Sandra Day O’Connor. Clarence Thomas. Ruth Bader Ginsburg. Sonia Sotomayor. Elena Kagan. We barely need two hands to count Supreme Court Justices who are not white men.

Mario Antonio Pena / Creative Commons

In its 229 year history, the Supreme Court has only had two Justices who are black and one Latinx Justice—who is also one of only four women to ever sit on the bench. No wonder we’ve had such flawed and devastating decisions coming out of the nation’s highest court concerning abortion and reproductive justice, immigration and civil rights and other topics that impact marginalized communities.

As a queer, Black, Jewish, first-generation American, I have always known that the law was never truly meant for me. As a law student, I struggled knowing that people like me were never meant to survive, let alone thrive, in this world.

Enter science fiction.

As a child, I lost myself in the worlds of Harry Potter, Fahrenheit 451, and Brave New World. In the years since, I have read and loved everything from Robert McCammon’s Swan Song to Octavia Butler’s Parable of the Sower. 

Science fiction revels in the opportunity to imagine new futures and dream of new worlds—something those of us doing the work or in the struggle do not often step back to do. But today, I choose to reimagine a world where the Supreme Court has an intersectional, anti-oppression lens.

Justice Sotomayor, in particular, has demonstrated the importance of bringing such a lens to the bench—one borne of her lived experiences.

Take, for example, her dissent in Utah v. Strieff (2016), in which the Court sided with the police state in a case challenging the alleged violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” The Court held that evidence an officer seized against an individual could be used against them, even if the police officer’s stop of the individual was unconstitutional.

Justice Sotomayor delivered a scathing response. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she declared. “This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time… It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

In her dissent, Sotomayor cites The New Jim Crow, by Michelle Alexander; The Souls of Black Folk, by W.E.B. DuBois; Between the World and Me, by Ta-Nehisi Coates; and The Fire Next Time, by James Baldwin.

Full stop: Do you know how amazing that is—to cite works by these literary giants in support of a legal proposition? It’s magic.

It’s the kind of magic we needed in Trump v. Hawaii, in which the Court held that President Trump lawfully exercised the discretion granted to him to suspend the entry of aliens into the United States—which, in truth, means that the Court refused to acknowledge or confront the curtain of thinly-veiled racism and xenophobia at the heart of Trump’s so-called travel ban. Instead, the court tiptoed around the issue of race and ethnicity.

An intersectional lens would have compelled the Court to note, instead, that it has played a seminal role in the development of race and the codification and institutionalization of racism and white supremacy in the U.S. The Justices would have discussed in their decision that Chae Chan Ping—the case wherein the body first recognized the authority of the government to refuse entry to citizens on the basis of ethnicity alone—was racist, and they would have overturned it as such. Their opinion would make mention of the fact that President Trump’s actions are rife with racism, expressly so, and that chief among these racist behaviors and statements is the fact that Trump is going after documented and undocumented immigrants of color, but does not seem to be waging a similar war against similarly situated white immigrants. An intersectionally-minded Court would recognize that people do not put their children into boats or push them across borders, sometimes alone, unless there are no other options, and it perhaps would have even reimagined our country’s immigration laws, taking their lead from those most affected—undocumented immigrants.

This framework would not just stop at immigration debates. If we placed those most impacted on the front lines, then the Court might consider that when gender, poverty, race, citizenship status and place intersect, the result is an “undue burden” on many people’s freedoms.

I dream of a Court where justices cite the works of Octavia Butler, and her proposition that change is inevitable—and that in order to progress as a society, we must accept the truth that we are constantly changing, which could even apply to the way the Constitution is read.

I know this sounds far-fetched, but I believe that we can actualize that dream. The journey to freedom is through, and right now, our country is in the process of birthing a new world. One day this can and will be our nation’s highest Court—after all, with justices like Sotomayor on the bench, it has already begun examining its historical context. But we need to get through the pain, and the trauma, of this political moment in order to imagine our way there.

If a horizon is the farthest point we can see, then I want to look there and find a Court that is not afraid to get uncomfortable and to wade into the muddy waters.

Dena Robinson, JD, is the Board of Directors President at If/When/How, a nonprofit that mobilizes law students to champion reproductive justice.

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