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UC Law Constitutional Quarterly

Abstract

June 29, 2023 was monumental for racial justice advocates and scholars; the U.S. Supreme Court issued a major decision that eviscerated affirmative action while declaring itself a vanguard of racial equality. The Court’s race-related juridical activities on the following day, June 30th, received far less attention. On June 30, 2023, the Court denied certiorari in five cases directly implicating race. Those denials of certiorari generated five opinions, two concurring in the denial and three dissenting from denial. These five opinions should have created as much buzz as the Court’s affirmative action decision the day prior; examined together, they tell a frightening story of raging anti-Blackness in twenty-first century America.

Through careful analysis of these five non-majority opinions, this article reveals two important and original insights. First, it establishes the post- 2020 Roberts Court as a resurrection of the two most racist postbellum Supreme Courts: the Waite Court, which lasted from 1874-1888, and the Fuller Court, which ruled from 1888-1910. These opinions expose the post-2020 Roberts Court as exhibiting a gross indifference to the lives and rights of Black people reminiscent of the Old Jim Crow Courts. Second, this article reveals “bad omens,” projecting the direction the current Court is leading the country in with respect to racial justice: the nation’s highest tribunal will likely invalidate all forms of antiracism, race conscious or otherwise. This article sounds the alarm on these non-majority opinions; racial justice advocates should acknowledge them as warning signs of things to come.

This article makes other important contributions. It wades into the academic debate regarding the utility of non-majority opinions with a hyperfocus on certiorari-stage writings; the scholarship on this aspect of the debate is almost non-existent. In fact, this article is the first to formally extol the value of certiorari-stage juridical writings, particularly in cases implicating race. Through these opinions, the justices give warnings as to where the law is headed. Racial advocates would do well to heed those warnings.

Most importantly, it situates America in a second nadir, at least on the legal front. The similarities between the 1890s and the 2020s that this article unearths do not begin and end with the Supreme Court; the federal government, then as now, is either indifferent or harmful to racial justice endeavors. In fact, the years 1892 and 2024 have much in common: each year produced both the election of a racist president to a second nonconsecutive term and the capture of majorities in both houses of Congress by the more openly racist political party. Racial justice advocates would do well to study history as they battle white supremacy’s “newest” iterations and manifestations.

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