The 2016 Election, the Supreme Court, and Racial Justice
Erwin Chemerinsky, The 2016 Election, the Supreme Court, and Racial Justice U. Chi. L. Rev. (2016).
What might the 2016 presidential election mean with regard to the Supreme Court and race? The next President, especially if he or she serves two terms, is likely to fill three and perhaps four vacancies on the Supreme Court. What might replacing these justices (and Justice Scalia) mean for racial justice in the United States? This paper Considers two examples: affirmative action and disparate impact liability. Both are crucial to remedying the long history of race discrimination in the United States and achieving racial justice. As for both, who fills the coming vacancies on the Supreme Court will be crucial in determining the law. A Republican President and Republican appointees to the Court surely will mean the end of affirmative action programs, while a Democratic President and Democratic appointees likely will lead to more latitude for the use of race conscious policies to remedy discrimination and enhance diversity. A Democratic President and Democratic appointees could mean a Court that allows greater use of disparate impact to establish constitutional violations. But a Republican President and Republican appointees will continue to require proof of discriminatory intent, which is often very difficult to demonstrate.