In order to protect the rights of all citizens, the Supreme Court must rule objectively, without the partisan biases that plague the other branches of government. But according to University of California School of Law dean Erwin Chemerinsky, the system is broken.

In his new book, The Case Against the Supreme Court, Chemerinsky takes the high court’s justices to task for failing the American people, and argues for several reforms — including the imposition of term limits — to save our legal system.

In the excerpt below, Chemerinsky examines one of the Supreme Court’s greatest failures: allowing the voting rights of racial minorities to be limited.

You can purchase the full book here.

The Nixon appointees and the conservative justices who subsequently came onto the Court over the next thirty-five years—including Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—have greatly limited the use of the Constitution, and even of government, to achieve racial equality. Two important examples of this are the Court’s refusal to allow equal protection challenges based on a law’s discriminatory effect against racial minorities and the Court’s significantly limiting the ability of the government to use race to benefit racial minorities.

Before explaining this, I should pause to acknowledge that while virtually everyone agrees that decisions such as Prigg, Dred Scott, and Plessy were tragically wrong, there is no consensus that the Court’s race decisions since 1971 have often been misguided. Here, liberals and conservatives disagree. But I would argue that the Court’s view of equal protection—simultaneously cramped when racial minorities attempt to use it to challenge discrimination and expansive when whites use it to object to affirmative action—has been a serious obstacle to achieving greater racial equality.

Some laws that are facially race neutral—that is, laws that don’t mention race—are administered in a manner that discriminates against minorities or has a disproportionate impact upon them. The Supreme Court has made it almost impossible to challenge such laws as violating equal protection and has held that there must be proof of a discriminatory purpose in order for such laws to be declared unconstitutional. This often makes it impossible to challenge government actions that have the clear effect of disadvantaging racial minorities. Especially now that legislators rarely openly express racism, it is very difficult—and often impossible— to challenge government actions that greatly disadvantage racial minorities.

Washington v. Davis, in 1976, was a key case articulating this limit on the ability to use the Equal Protection Clause to challenge race discrimination. Applicants for the police force in Washington, D.C., were required to pass a test, and statistics revealed that blacks failed the examination much more often than whites. Because of the long history of disparities in education, standardized tests often have a discriminatory impact on racial minorities. Frequently they have no relationship to the job tasks involved in the position for which they are used to screen applicants. The effect is to significantly disadvantage minorities in hiring.

The Supreme Court, however, held that proof of this discriminatory impact was insufficient, by itself, to show the existence of race discrimination or to provide a basis for a challenge under equal protection. Justice Byron White, writing for the majority, said that discriminatory impact “[s]tanding alone . . . does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”

Many times the Court has reaffirmed this principle that discriminatory impact is not sufficient to prove a racial classification, and the clear effect has been to uphold laws that greatly harm racial minorities. For example, in Mobile v. Bolden, in 1980, the Supreme Court held that an election system that had the impact of disadvantaging minorities was not to be deemed to violate equal protection unless there was proof of a discriminatory purpose. The case involved a challenge to Mobile, Alabama’s use of an at-large election for its city council. Mobile had a three-person city council. It might have, but didn’t, divide the city into three election districts. Instead it had an at-large election, in which every voter cast three votes for the three-person city council.

The city was predominantly white but had a sizable African American population. The long history of racially polarized voting in Mobile meant that only whites were elected in the at-large system. In fact, not one African American was elected to the Mobile city council in the twentieth century. Mobile, of course, like the state in which it is located, has a long history of race discrimination. Nonetheless, the Supreme Court found no equal protection violation because there was not sufficient evidence of a discriminatory purpose. The Court declared: “[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause. . . . [T]his principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination.” Election systems like Mobile’s, which significantly disadvantage minority voters, are thus rendered immune from constitutional challenge.

Similarly, in McCleskey v. Kemp, in 1987, the Supreme Court held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation. Warren McCleskey, an African American man, was convicted of murder and sentenced to death in Georgia. Statistics powerfully demonstrated racial inequality in the imposition of capital punishment in that state. A study conducted by University of Iowa law professor David Baldus found that the death penalty was imposed in 22 percent of the cases involving black defendants and white victims; in 8 percent of the cases involving white defendants and white victims; in 1 percent of the cases involving black defendants and black victims; and in 3 percent of the cases involving white defendants and black victims. Baldus found that “prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims; 15 percent of the cases involving black defendants and black victims; and 19 percent of the cases involving white defendants and black victims.” After adjusting for many other variables, Baldus concluded that “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”

Studies across the country constantly show that the death penalty is administered in a racially discriminatory manner. Prosecutors are more likely to seek the death penalty and juries are more likely to impose it when the defendant is African American or Latino.

If you enjoyed this excerpt, purchase the full book here.

From The Case Against the Supreme Court by Erwin Chemerinsky. Reprinted by arrangement with Viking, a member of Penguin Random House. Copyright © Erwin Chemerinsky, 2014.

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