Supreme Court review: Race dominates the docket | The American Association For Justice Archive

Supreme Court review: Race dominates the docket

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December 2016 - Erwin Chemerinsky


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Racial issues remain, as they have been throughout American history, enormously important and deeply divisive. It is therefore to be expected that the U.S. Supreme Court continues to tackle this issue in an array of contexts.

Last Term, for example, the Court, in Fisher v. University of Texas at Austin, upheld an affirmative action program—by a 4-3 margin—allowing colleges and universities to use race as an admissions factor to benefit minorities and enhance diversity.1

In Utah v. Strieff, the Court held that evidence is admissible, even after an illegal police stop, if officers discover an outstanding warrant for a person’s arrest and then perform a search incident to that arrest.2 Justice Sonia Sotomayor wrote a passionate dissent lamenting the effect of the Court’s decision.3 She expressed concern that this would encourage police to engage in illegal stops and that it would especially impact minority communities.4

And now in the October Term 2016, a large number of cases—both constitutional and statutory—touch on racial issues. For example, two cases on the docket involve the use of race in drawing election districts. Supreme Court decisions from the 1990s addressed this issue but left unanswered questions. In Shaw v. Reno and Miller v. Johnson, the Court held that the government cannot use race as a predominant factor in drawing election districts to make it easier to elect racial minorities unless the government meets strict scrutiny—it must prove that it is necessary to achieve a compelling government interest.5

But how do courts determine whether race—as opposed to permissible considerations, such as protecting incumbents or creating a political advantage—is the predominant factor in districting?

Two cases this Term may help answer this. In Bethune-Hill v. Virginia State Board of Elections, a three-judge panel in the Eastern District of Virginia rejected the argument that ­Virginia had impermissibly used race in drawing districts for its House of ­Delegates.6 In 12 districts, a majority of residents were African-American, and the goal was for each district to have a voting age population that was 55 percent­ African-American.7 The court found that race was not the predominant factor in drawing 11 of the challenged districts—and in the twelfth district, the government had to consider race to comply with the Voting Rights Act.8

By contrast, in McCrory v. Harris, a three-judge panel in the Middle District of North Carolina found that using race in drawing that state’s congressional districts violated the Equal Protection Clause.9 The court concluded that race was the predominant factor in drawing two districts and that the government failed to meet strict scrutiny.10

Although the facts and many specific issues in the two cases are different, the underlying questions are the same: When is race a predominant factor in districting, and what is enough to justify it?

Some of this Term’s race-related cases arise from the criminal justice system. Pena-Rodriguez v. Colorado, for example, concerns whether a jury verdict can be reconsidered after it is discovered that one of the jurors expressed racial bias during jury deliberations.11

The defense lawyer in Pena-Rodriguez learned after trial that during deliberations, one of the jurors said that the defendant was likely guilty “because he’s Mexican” and that other jurors should not believe an alibi witness because the witness was Hispanic.12

Colorado—and most jurisdictions—has a rule that a jury verdict cannot be impeached based on statements made during deliberations. But does the Constitution, and its guarantee of a fair trial, require an exception here?

Statutory cases involving race are also on the docket. In Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami, the Court is considering what allegations are sufficient for a city to sue banks for predatory lending in violation of the Fair Housing Act.13

The city of Miami alleges that Bank of America and Wells Fargo targeted residents of predominately minority communities with high-risk loans, knowing the likelihood of defaults would be high. The city contends that the predictable foreclosures undermined its efforts to achieve fair housing policy.

The Eleventh Circuit ruled that these allegations were sufficient to withstand a motion to dismiss, but the banks argued to the Supreme Court that the city is not aggrieved and should not be able to sue.14

This list of race-based cases is not all-inclusive, but these likely will be some of the most important rulings of the year.

Erwin Chemerinsky is the Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law in Irvine, Calif. He can be reached at


  1. 136 S. Ct. 2198 (2016).
  2. Id.
  3. 136 S. Ct. 2056, 2064 (2016) (Sotomayor, J., dissenting).
  4. Id. at 2069.
  5. Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995).
  6. 141 F. Supp. 3d 515 (E.D. Va. 2015), prob. juris. noted, 136 S. Ct. 2406 (2016) (No. 15-680).
  7. Id. at 519.
  8. Id. at 511.
  9. Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016), prob. juris. noted, 136 S. Ct. 2512 (2016) (No. 15-1262).
  10. Id. at 611.
  11. Pena-Rodriguez v. People, 350 P.3d 287 (Colo. 2015), cert. granted, 136 S. Ct. 1513 (2016) (No. 15-606).
  12. Id. at 288–89.
  13. City of Miami v. Wells Fargo & Co., 801 F.3d 1258 (11th Cir. 2015), cert. granted, 136 S. Ct. 2545 (No. 15-1112); City of Miami v. Bank of America Corp., 800 F.3d 1262 (11th Cir. 2015), cert. granted, 136 S. Ct. 2544 (No. 15-1111). Author is cocounsel for the city of Miami in both of these cases.
  14. Id.