Why won't the US Supreme Court do anything about racism?

The Chicago police officer Jason Van Dyke fired 16 shots, killing the African-American teenager Laquan McDonald; 14 of those shots were apparently fired while McDonald lay on the ground. It took four years and the expulsion of the state attorney general before the trial against Van Dyke for first-degree murder resulted in convictions for the lesser crimes of second-degree murder and aggravated battery this October. Before the shooting, Van Dyke ranked among the worst 3 per cent of officers in excessive force allegations, making him identifiable as a ‘problem officer’ even before he killed McDonald. This case is remarkable not for the violence committed by a white police officer against an unarmed African American, but because it involved a rare instance of the United States’ legal system scrutinising a police shooting. The courts in the US have done little to intervene more generally in the mass surveillance, mass violence and mass incarceration affecting people of colour.

Racial division has always been the transcendent theme of American society. But with the proliferation of recording devices on every phone, there has been an explosion of videos showing police committing various acts of violence against minorities. Now the US is being forced to face the reality of police beatings, shootings, and police officers taunting people of colour whom they have stopped on the street with little justification. Yet the US Supreme Court has refused to weigh in on these obvious racial discrepancies in the criminal justice system. Instead, it emphasises constitutional colourblindness, which allows it to avoid confronting the judiciary’s role in perpetuating racial discrimination in the US.

The Supreme Court has historically been viewed as a model for functioning constitutional democracies because of its power of judicial review, which enables it to act as an independent check on government. But even though the Court now expends roughly one-third of its docket on criminal justice cases, it consistently ducks the key challenges of discriminatory police stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, racially disproportionate sentencing and disproportionate execution of racial minorities. For these reasons, we argue in a recent article in the UC Davis Law Review that the Supreme Court has made itself supremely irrelevant in several important ways.

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These issues are tearing at the fabric of US society, with protests blooming in response to videos of police shootings and evidence emerging of police and prosecutors targeting traditionally disadvantaged minorities. Yet the Supreme Court has little to say in the face of readily apparent racial disparities in the criminal justice system that it is meant to oversee. The Court is abdicating its responsibility to regulate the US criminal justice system, hiding behind newly created ‘colourblind’ conservative doctrines that limit its own review of these undeniable social ills. And with the recent appointment of Brett Kavanaugh to secure a five-vote conservative majority, it might be decades before the Court’s criminal justice rulings offer meaningful protections to the people most impacted by that system. Meanwhile, people of colour are paying the price.