The Roberts Court as Champion of Racial Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Khiara M. Bridges

            The November issue of the Harvard Law Review is always dedicated to the Supreme Court’s most recently concluded Term. I had the honor of writing the Foreword to the November 2022 issue of the Review. The October 2021 Term included cases that touched on some of the most politically salient issues in the U.S. today, including climate change, the place of religion in public life, guns, and abortion rights. One part of my Foreword is an investigation into the role of race in two of the Court’s biggest cases last Term—New York State Rifle and Pistol Association v. Bruen, in which the Court interpreted the Second Amendment to protect a very broad right to bear and carry arms, and Dobbs v. Jackson Women’s Health Organization, in which the Court overturned Roe v. Wade and returned the question of abortion’s legality to the states.

The Foreword analyzes the way that race operated in those cases. It argues that although neither case is about race—and although the Court did not have to talk about race to adjudicate the constitutional question before it—the Court deployed race in the service of its preferred policy outcome. To be precise, the Court framed its decisions in both cases as ones that would be work to undo racial hierarchy and racial subordination. In essence, the Court positioned itself as a champion of racial justice.

Justice Thomas’s majority opinion in Bruen continues a narrative about the relationship between gun rights and black liberation that began in District of Columbia v. Heller and continued in McDonald v. City of Chicago. In this narrative, gun rights and gun possession are essential to black freedom. The Bruen majority opinion describes recently emancipated black people who “had ‘procured great numbers of old army muskets and revolvers, particularly in Texas,’ and ‘employed them to protect themselves’ with ‘vigor and audacity.’” It recounted the stories of black people who considered it essential to possess firearms if they were to participate in politics: these folks “nearly all sle[pt] upon their arms at night, and carr[ied] concealed weapons during the day.” It related that at the end of the Civil War, there had been an “outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves.” As I argue in the Foreword, “[t]he opinion can be read to argue that the reason for this ‘outpouring of discussion’ is that the public back then understood, as the majority wisely understood today, that black people need guns to be truly free and equal in America.”

In this way, Bruen deploys race in a way that locates the Court as one that is invested in black people’s wellbeing. Positioned as such, those who would try to prevent black people from possessing firearms—like New York State and its restrictive licensing regime, as well as other liberal proponents of gun control measures—figure as the parties who are responsible for black people’s subordination. The Democratic Party becomes the biggest threat that black people face—its policy goals a program of racial oppression. Simultaneously, the Republican Party, and the Court that does its bidding, become the antiracists.

The Dobbs majority opinion contains similar rhetorical moves, with the Court deploying race, albeit more subtly, to add legitimacy to its preferred outcome. The most telling indication that the Court aims to frame its decision to overturn Roe as one that is in the service of racial justice is the majority opinion’s approving citation of Justice Thomas’s concurring opinion in Box v. Planned Parenthood. Thomas’s opinion in Box, which proposes that the higher rates of abortion among black people today provide demonstrable proof that abortion is a technique of black genocide, ignores the myriad reasons behind black people’s more frequent turn to abortion care—reasons that sound in poverty, lack of access to contraception and reproductive healthcare, and interpersonal violence. Thomas’s opinion completely ignores the structural vulnerability that has left black people with significantly higher rates of abortion than their nonblack counterparts. Instead, in Justice Thomas’s rendering, those rates evidence a genocidal plot to decimate the black race. It is as simple as that. If abortion rights and access have been used as tools to annihilate black people, then the criminalization of abortion, which the reversal of Roe would permit, is in the service of black health and wellbeing.

Justice Alito’s majority opinion in Dobbs continues Justice Thomas’s figuration of the relationship between race and abortion. In a footnote, the opinion observes that several amicus briefs have argued that “some such supporters [of abortion rights] have been motivated by a desire to suppress the size of the African-American population.” The majority opinion responds to this claim by stating, “And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are Black.” As I write in the Foreword, “In refusing to discuss the myriad reasons for black people’s higher abortion rates — even though that information was available to the Court in other amicus briefs — the majority opinion implicitly endorsed the ‘abortion is black genocide’ argument. It implied that the argument is worth mentioning as valid. It implied that the argument is not worth dismissing out of hand as propaganda.”

Further, included in the majority opinion’s partial itemization of legitimate interests that the reversal of Roe allows states to pursue when passing abortion restrictions and regulations is the governmental interest in “prevent[ing] discrimination on the basis of race.” Here, the majority proposes that it is legitimate for the state to believe that black people’s higher abortion rates are a function of eugenicists and agents of genocide duping black people into abortion care. As I write in the Foreword, “Dobbs establishes that far from being a fantasy of conservative ideologues or a narrative that political actors tell to try to secure black people’s opposition to abortion, it is legitimate to think that black people have higher rates of abortion in part because genocidal actors are out to get them.” In this way, Dobbs proposes that the reversal of Roe is in black people’s best interest. The Roberts Court—and the Republican Party whose platform the Court works to install as the law of the land—figure as the true champions of racial justice.

What does this allow us to predict about the decisions that the Court will issue in future Terms? It permits us to foresee that the Court will not be satisfied with staying silent on race when it is possible to do so. (Again, the Court could have reached its holdings in Bruen and Dobbs without saying a word about race and racism.) Instead, we can predict that the Court will frame its decisions—whether they concern First Amendment rights or the administrative state—as in furtherance of racial equality and racial justice. But, this may be unsurprising. The Court has all but abandoned the pretense that it is an apolitical body—guided by logic and reason, bound by precedent, above the fray of politics. We might have expected that it would come to be concerned with the political acceptability of its decisions. 

Khiara M. Bridges is a professor of law at UC Berkeley School of Law. Her email address is khiara.m.bridges@berkeley.edu.