Although the U.S. Supreme Court was "once a leader in the world" in the battle for racial equality, recent decisions by the high court undermine its role in solving a "real racial problem" in America, Justice Ruth Bader Ginsburg explained in an interview with The National Law Journal on Wednesday.
Citing recent events in Ferguson, Missouri, and racially biased stop-and-frisk policies, Ginsburg reflected on the perpetuation of racial segregation in America, comparing the challenges with those of the lesbian, gay, bisexual and transgender community.
"Once [gay] people began to say who they were, you found that it was your next-door neighbor or it could be your child, and we found people we admired," she said. "That understanding still doesn't exist with race; you still have separation of neighborhoods, where the races are not mixed. It's the familiarity with people who are gay that still doesn't exist for race and will remain that way for a long time as long as where we live remains divided."
But instead of upholding the court's history as a powerful stalwart against racial discrimination, the Roberts court's recent decisions upholding affirmative action bans and restricting voting rights have not "helped" the country advance, Ginsburg explained.
"What's amazing is how things have changed," Ginsburg said, recalling the landmark 1971 decision of Griggs v. Duke Power Co., in which the Supreme Court unanimously held that employer policies that look neutral on paper can still constitute discrimination if they disproportionately harm minorities in practice. "It was a very influential decision and it was picked up in England. That's where the court was heading in the '70s."
Singling out the Voting Rights Act as the most powerful law "in terms of making people count in a democracy," Ginsburg reiterated her opposition to the court's majority 2013 decision in Shelby County v. Holder, which struck down a key provision that helped safeguard against racial discrimination in voting laws.
Chief Justice John Roberts Jr., who delivered the majority decision, justified the ruling by arguing that "things have changed dramatically" in the South since the landmark civil rights law was signed in 1965 and that the provision, while once critical, is no longer needed.
At the time, Ginsburg warned against the consequences of eliminating the key prong, which required parts of the country to obtain federal clearance before changing their voting laws, as shortsighted when dealing with a "known list of places with an undisputed history of serious problems with racial discrimination in voting."
"Volumes of evidence supported Congress' determination that the prospect of retrogression was real," Ginsburg wrote in her dissent in June 2013. "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."