As another season of last-minute U.S. Supreme Court opinions are handed down, Americans are faced with a perennial question: how much compliance is obligatory and how much room is there to disagree?
It’s critical to keep in mind that the Supreme Court never has the last word, the people do. And thanks to structural concepts like federalism, differences of opinion on matters of fundamental importance such as equality are not only encouraged but essential to popular self-government. One thing is certain: jurisdictions can be more committed to equality than the justices themselves, a valuable fact to remember as the court’s priorities and ideological orientation are increasingly out of step with those of many citizens.
Consider one of the bleaker moments in court history: the 1987 case of McCleskey v. Kemp. In the early 1980s, a study revealed wide racial disparities in Georgia’s administration of the death penalty—including that people charged with killing white people were 4.3 times more likely to receive a death sentence than those charged with killing Black people. Lawyers introduced this evidence in the case of Warren McCleskey, a Black man convicted of killing a white police officer, to try to persuade the Justices that Georgia was denying Black citizens equal protection under the law.
Instead, the Justices ruled 5-4 against McCleskey, a ruling that tried to insulate the criminal justice system nationwide from structural inequality lawsuits. To most observers, this looked like a resounding defeat for the cause of racial justice. In fact, Justice Lewis Powell told his colleagues privately that they had to find a way to avoid “statistical jurisprudence” that encouraged others to cast doubt on other aspects of the justice system—causing Justice William Brennan to accuse his colleagues of exhibiting “fear of too much justice.” Thus, despite the study demonstrating disturbing racial disparities in the administration of the death penalty, the court ruled that additional evidence of bias was needed to set aside a person’s conviction. McCleskey couldn’t satisfy this high standard and was ultimately executed.
Justice Powell protected the prerogative of prosecutors because he believed that racial disparities were inevitable in any system that entailed discretion. In the wake of McCleskey, advocates could have acquiesced to the court’s exceedingly narrow concept of equality, one that refused to see structural inequality, but recognized only isolated acts of individual wrongdoing. Instead, realizing the Supreme Court was not going to protect their clients from exposure to unequal justice, some advocates doubled down on a more robust notion of racial equality. They ramped up their efforts to document structural inequality by demanding access to prosecutor’s files and shamed prosecutors and judges for eliminating people of color from jury pools.