The Supremacist Court? What Brett Kavanaugh’s Confirmation Could Mean for Communities of Color

Is your armor on? (You know, the armor you put on when watching the news these days.) Mine is—because I knew that I couldn’t miss a second of the coverage of Judge Brett Kavanaugh’s confirmation hearings, which started today.

There are a lot of reasons we should be paying close, vigilant attention to Kavanaugh’s record and his hearings. Reproductive health, rights and justice groups have been sounding the alarm on Kavanaugh’s nomination since June, and with good cause—and when media coverage in August was dominated by President Trump’s legal woes, so, too, was it rife with discussions about Kavanaugh’s stated belief that a sitting President should not be able to be prosecuted. But lost in the ongoing uproar against Kavanaugh’s nomination are a slew of cases winding their way up to the Supreme Court that will have enormous impacts on communities of color.

In 2013, activists rallied for voting rights outside the Supreme Court. Attacks on them have persisted, and Kavanaugh’s nomination could be a boon for voter suppression efforts. (SEIU / Creative Commons)

At least three different cases in 2018 will put issues of tribal sovereignty in front of the Supreme Court. In Herrera v. Wyoming, the justices will hear a case from the Crow tribe; this case tests whether treaties signed by the federal government in the 1800s are still valid. (The U.S. still has all the land, so the answer is a pretty clear yes that we think the treaty is still valid—but we’ll have to see what the court says.) In Public Service Company of New Mexico vs. Barboan, a utility company has been trying to condemn land on the Navajo Nation in order to keep operating a power line on the reservation. Navajo landowners haven’t been paid for the use of their land for nearly 20 years, and big energy companies like Edison Electric Institute, the Association of Oil Pipe Lines and the American Gas Association have filed friend of the court briefs to get in on the action; unfortunately, siding with corporate interests and against tribal sovereignty in this case seems like an obvious outcome for Kavanaugh’s Supreme Court.

Sanctuary status is also on the docket. In early 2018, the Trump Administration sued the state of California about its passage of three “sanctuary laws.” One of the three laws restricts state and local officials from sharing information about immigrants with federal agencies—and although normally, conservatives would be all for states’ rights, a series of battles are lining up in federal court between state governments making efforts to protect immigrants and a hostile federal government that wants to push them to fall in line through aggressive financial and legal bullying.

This year, the Supreme Court also punted on two cases of gerrymandering, the pernicious practice of politicians drawing election lines in ways that benefit a specific party. With a weakened Voting Rights Act, which the Supreme Court gutted in 2013, there are far fewer legal guarantees that prevent states from creating new barriers to voting— “second-generation barriers to ballot access” like racial gerrymandering, laws requiring at-large voting in places with a sizable Black community or new and onerous voter identification laws that disproportionately impact immigrant communities. The Supreme Court left the door open for future challenges to gerrymandering—and now, even moreso, there’s little assurance that it will take any action to stop the practice.

President Trump has picked his last two Court nominees from a list of names approved by the Federalist Society, of which a key litmus test is whether judges will commit to interpreting the Constitution as written and enforce limits on government power outlined in the Constitution. But “interpreting the Constitution as it’s written” is concerning for women, people of color and indigenous communities—because we’re not in the original constitution, and neither are demands for our basic human rights. Government powers outlined in the Constitution also didn’t include healthcare, environmental safeguards, a functional and fair public education system or any other roles that a modern national government must contend with.

This new Supreme Court justice will make generational decisions—likely interpreting the laws passed by Congress and states until my two sons, who are currently seven and ten, are in their thirties. Brett Kavanaugh is only 10 years older than me; he will likely sit on the court for the rest of my life.

We can and must make sure that Kavanaugh isn’t confirmed. There is too much at risk to sit on the sidelines.


Kalpana Krishnamurthy is the Policy Director at Forward Together. She’s not a lawyer, and has not been inside of a courtroom. She has protested outside the Supreme Court. Forward Together works nationally to ensure that all families have the rights, recognition and resources they need to thrive.