SCOTUS Can’t Deal with Race or Ethnic Issues

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SCOTUSBy Rowan Wolf

The Supreme Court of the United States (SCOTUS), or at least the majority of them, seem to feel that we are in a post-racial, post-ethnic, ahistorical period. Whether it is deciding to gut parts of the hard-won voting rights act, or whether it is gutting the Indian Child Welfare Act (ICWA), the majority of the court does not understand that racism is not dead and that they are reinstitutionalizing significant components of that racism.


Shelby County, Alabama v. Holder … and the Voting Rights Act

Supporting: Roberts, Scalia, Kennedy, Thomas, and Alito  / Dissenting: Ginsburg, Breyer, Stotmayor, Kagan.

In the case of the Voting Rights Act (Section 5 to be specific) related case (Shelby County, Alabama v. Holder, Attorney General, et al.), Chief Justice Roberts (writing for the majority) argued that the Voting Rights Act had been successful and that the country had changed. He then utilized registration statistics to “demonstrate” that the key tenets of the Act were no longer necessary. Leonard Pitts, Jr. writing for the Baltimore Sun (The Supreme Court’s Assault on Civil Rights, 7/6/13) summarized Justice Ginsburg’s dissenting statement:

Using that success as an excuse to cripple it, noted Justice Ruth Bader Ginsburg in her dissent, is like “throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, had the nation not changed dramatically since 1965, would that not have been cited as evidence of the act’s failure? Damned if you do, damned if you don’t, then: the Voting Rights Act never had a chance.

In a well crafted analysis of the problem of utilizing statistical data in the way that Roberts did,  Nate Silver (In Supreme Court Debate on Voting Rights Act, a Dubious Use of Statistics) argues:

The bigger potential flaw with Chief Justice Roberts’s argument is not with the statistics he cites but with the conclusion he draws from them.

Most of you will spot the logical fallacy in the following claim:

No aircraft departing from a United States airport has been hijacked since the Sept. 11 attacks, when stricter security standards were implemented. Therefore, the stricter security is unnecessary.

As much as I might want to be sympathetic to this claim (I fly a lot and am wary of the “security theater” at American airports), it ought not to be very convincing as a logical proposition. The lack of hijackings were in part a product of an environment in which airport security was quite strict, and says little about what would happen if these countermeasures were removed.

Silver concludes with:

Statistical analysis can inform the answers if applied thoughtfully. But statistics can obscure the truth when they become divorced from the historical, legal and logical context of a case.

Indeed, there is a problem with divorcing statistics from context. An important part of the current context is the Republican effort across the country to enact voting restriction laws aimed at intentionally denying racial and ethnic minorities equal access to the vote. These voting restrictions also  negatively impact those who are poor, elderly, and disabled, and rural.

This effort to restrict voter participation is part of a long term Republican game plan (see note 1 below regarding Paul Weyrich). It is sadly being an effective campaign, and decimating the Voting Rights Act is only another advance in that plan.

Adoptive Couple v. Baby Girl and ICWA (SCOTUS opinion)

Supporting Alito, Roberts, Thomas, Kennedy. Breyer / Dissenting: Sotomayor, Ginsberg, and Kagan, with Scalia joining in part.

ICWA is federal legislation that is aimed at keeping Indian children with their families and tribes. The historical context for the Act is the mass removal of Native children from their families and tribes – first with the boarding school movement, and then through the intervention of Children’s Services agencies. Those agencies refused to acknowledge the cultural differences of family and child rearing among the tribes and forcibly removed Native children from their homes.  Originally (with the boarding school movement) the intention was clearly cultural genocide. That genocide  continued via fosterage – whether intended or not. ICWA was aimed at giving the tribes, and Native families, protection from involuntary termination of parental rights. It also provides rights and protections for Indian children who have been separated from family and tribe. (see Note 2)

The case and decision is summarized nicely by Marcia Zug: (with the exception that Veronica is not adopted, and hence not legally “Capobianco”

Baby Girl involves an Indian child, Veronica Capobianco, who was placed for adoption with the Capobianco’s at birth. Her biological father, Dusten Brown, never agreed to the adoption—he says he gave up his parental rights without knowing that the child’s biological mother was going to give her up for adoption. Upon receiving notice of the pending adoption, Brown immediately contested it. Brown is an enrolled member of the Cherokee tribe of Oklahoma and he argued that the termination of his parental rights was invalid under a federal statute known as the Indian Child Welfare Act, which aims to strengthen and protect Indian families by preventing their unnecessary break up.

One of the ways ICWA protects Indian families is by forbidding the involuntary termination of Indian parents’ parental rights. Under the statute, such terminations are forbidden in the absence of a heightened showing that serious harm is likely to result from the parent’s “continued custody” of the child. Brown based his argument on this statutory provision and won in South Carolina. After two years of living with the Capobiancos, Veronica was turned over to her biological father. But now, in a 5–4 decision, the Supreme Court has said that the South Carolina courts were wrong.

The Court’s decision actually argued that provisions of ICWA would “dissuade” non-Native adoptive parents from adopting Native children. Stunningly, this is part of the reasoning behind ICWA. Much like the decision regarding the “success” of the Voting Rights Act, the majority of the Court seems to believe that there is no longer any need to worry about the issue of Native children being removed from their cultural environment, nor the continued existence of the tribes existence resting on the young – just like in every culture.

Adding to the misrepresentation of this case was the media who portrayed many aspects of the case incorrectly. For example, stating that Baby Veronica had been adopted by the Capobianoco’s. Actually the adoption was never completed and the South Carolina Family Court denied the petition to adopt (NICWA Fact Check). Further, it was determined that there was a clear knowledge on the part of both the biological mother and the Capobianco’s that the Brown was a tribal member; that this was important; and that it could impact the adoption. There seems to be several efforts to subvert this and therefore allow the adoption to go forward. First was the misspelling of Dusten Brown’s first name and providing an incorrect birth date which led to the tribe not acknowledging that Mr. Brown was indeed a tribal member. Further, the race of the child was indicated as “Hispanic.” (side note: Hispanic not a race, but an ethnic identification) instead of Native American and White.

None of this made a difference to the conservatives on the Court, as they seemingly don’t care for a federal law on Indian welfare.  Krehbiel-Burton for Native American Times summarizes some of Justice Alito’s comments thusly”

Calling the Indian Child Welfare Act an 11th hour trump card for Brown, Justice Samuel Alito made multiple references to the child’s blood quantum and claimed that the act could potentially put vulnerable children at risk because of a “remote Indian ancestor.”

Wrong and Wrong and “Right” on Track

So the majority of the court (who are conservative) are taking up these critical racial issues and operating from both a conservative and White privileged perception of racial understanding. From the conservative justices we see both ideological biases and political influences. On the ideological side there is a perception that somehow basic civil rights and protections for real injurious processes are either no longer needed, or (as with Scalia) should never have been there in the first place.  In the present “white” world (and it has been this way for some time), racial issues, and particularly institutionalized racist processes, are history and no longer part of today’s social-political milieu. Somewhere we tipped over a line into racial “entitlement” for those deemed not white. Interestingly we did that without ever having once discussed (much less addressed) the issue of white privilege.

At least one justice is quite vocal in his personal opinions on racial issues coming before the court. We have multiple examples of Scalia referring to the The Voting Rights Act as a  “perpetuation of racial entitlements.” Now one would think that voting was a right and not an “entitlement,” but Scalia felt that it was the duty of the Court to “fix” this “entitlement” problem since Congress lacked the political will to do so. Further, Alito’s comments seem to assume that keeping children with Native ancestry with their families is somehow putting them “at risk.” Really!? Does this mean that white adoptive families are inherently less “risky?” (Activist judges anyone? I am not hearing the right scream about these decisions.)

The Shelby County decision clearly furthers the political agenda of shrinking the electorate. The Baby Veronica decision indicates a clear disdain for legal protections for tribal families, and a willingness to overrule established law for political expedience – not Constitutional purity.


1. Paul Weyrich, one of the “founding fathers” of the new conservative movement (founded the Heritage Foundation, Moral Majority, and other organizations) speaking at a religious right convention in Dallas in 1980 stated: “How many of our Christians have what I call the “goo-goo syndrome”? “Good government.” They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and are not now. As a matter of fact, our leverage in the elections, quite candidly, goes up as the voting populace goes down.” (YouTube recording)

2. Ben Shelly wrote a nice personal account relating to ICWA for the Washington Post in “Baby Veronica and the fight to preserve Native American rights.”

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