All posts by MuniCourts

Criminal Law, Guns

New York defines illegal firearms use as a ‘public nuisance’ in bid to pierce gun industry’s powerful liability shield

by Timothy D. Lytton, Georgia State University

Could calling the illegal use of firearms a “public nuisance” bring an end to the gun industry’s immunity from civil lawsuits?

New York will soon test that notion. State lawmakers recently amended New York’s public nuisance statute to specifically include marketing and sales practices that contribute to gun crimes. Gov. Andrew Cuomo signed the bill on July 6, 2021, after declaring gun violence a “disaster emergency.”

I’ve been researching lawsuits against the gun industry for over 20 years. While I believe New York’s law is certain to unleash a new round of lawsuits against gun-makers, my research suggests that these claims will face considerable legal hurdles. Even if this litigation succeeds – effectively ending the gun industry’s immunity from liability – the jury is still out on whether it will do much to curb gun violence.

Illegal gun use is now a public nuisance in New York. AP Photo/Bebeto Matthews

 

Defining illegal gun use as a public nuisance

States routinely rely on public nuisance laws to regulate conduct that unreasonably interferes with the health and safety of others. Common examples include polluting the air or water, obstructing roadways or making excessive noise.

New York’s amended statute holds gun manufacturers and sellers responsible for the public nuisance of illegal gun use if they fail to implement “reasonable controls” to prevent the unlawful sale, possession or use of firearms within the state. The law specifies that “reasonable controls” include implementing programs to secure inventory from theft and prevent illegal retail sales.

Under the law, both public officials and private citizens can file lawsuits seeking money damages and a court injunction to compel offending parties to stop the nuisance. For example, a gun manufacturer who sold weapons that were subsequently used in crimes could be held liable if it failed to take reasonable measures to ensure that retail dealers did not engage in illegal sales practices.

The gun industry’s immunity shield

Suing the firearms industry for gun violence under the theory of public nuisance is nothing new.

Individual gun violence victims, civic organizations such as the NAACP and big-city mayors started filing such lawsuits in the late 1990s. Congress put an end to this litigation in 2005 when it passed the Protection of Lawful Commerce in Arms Act, which granted gun sellers – including manufacturers – immunity from liability arising out of criminal misuse of the weapons they sold.

Immunity under the act is not absolute. Notably, a seller is not immune from liability if it “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms. Consequently, following the passage of the act, plaintiffs argued that gun-makers’ marketing, distribution and sales practices constituted a public nuisance in violation of state statutes.

However, federal appellate courts in New York and California rejected this argument. Those courts held that public nuisance laws did not qualify for the exception to immunity because they were not specifically aimed at regulating firearms.

Challenges ahead for New York’s new law

New York responded by updating its statute.

The state is hoping to prompt civil litigation that will bring pressure on the industry to prevent the diversion of guns into the black market and the hands of illegal gun traffickers. Before the federal immunity bill, the industry faced a rising tide of litigation.

New lawsuits, however, will face multiple challenges, which I believe will likely reach all the way to the U.S. Supreme Court. I will consider two prominent ones.

First, gun industry defendants will argue that New York’s amended public nuisance statute is an attempt to subvert the purpose of 2005 law, which was passed specifically to halt these types of claims against gun sellers in the 1990s and early 2000s.

The opening section of the immunity law denounces this litigation as “an abuse of the legal system.” New York’s claim to utilize a narrow exception to gun industry immunity looks an awful lot like an attempt to eliminate immunity altogether.

At the same time, the letter of the law allows claims arising out of the violation of any statute that specifically applies to the sale of firearms, which is exactly what New York’s amended public nuisance law does.

For the Supreme Court, these contending views would pit the conservative majority’s strong allegiance to gun rights against its insistence on sticking to the letter of the law when reading statutes.

Second, gun industry defendants will argue that the Second Amendment limits any type of litigation likely to restrict access to the lawful purchase of firearms.

In a series of landmark cases, the Supreme Court said the Second Amendment protects the right of individuals to own firearms “in common use” for “lawful purposes like self-defense.” If public nuisance lawsuits were to drive some gun-makers into bankruptcy, courts might view them as a threat to Second Amendment rights.

However, the Second Amendment is silent on how to balance the constitutional right to keep and bear arms against the right Americans have to sue in civil court. How the Supreme Court might rule on this particular challenge is unclear.

Impact on reducing gun violence

But let’s assume for a moment that nuisance lawsuits survive a Supreme Court challenge, effectively ending the gun industry’s liability shield. Would this litigation then be able to reduce gun violence?

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.

Republished with permission under license from The Conversation.

Civil Law, Criminal Law, History

‘Landmark’ verdicts like Chauvin murder conviction make history – but court cases alone don’t transform society

by Jennifer Reynolds, University of Oregon

American courts in 2021 have already handed down several potentially historic rulings, from the Supreme Court’s recent decision restricting voting rights in Arizona and potentially nationwide to a Minnesota jury’s conviction of police officer Derek Chauvin for murdering George Floyd last year.

Cases like these are often called “landmark” cases, because they set forth ideas and ideals that may bring about significant changes in the political and legal landscape.

Many analysts considered the Chauvin trial, in particular, to be a landmark. In it, police officers actually testified against one of their own, which is rare, and the jury held a white police officer criminally accountable for killing a Black man. On June 25, 2021, the judge sentenced Chauvin to 22.5 years in prison for murdering Floyd after he attempted to use a counterfeit bill to buy cigarettes.

People all over the world have followed the Chauvin trial closely, as the culminating event after a year of global protests against police brutality and racism.

Landmark trials may go down in history, but as a law professor specializing in alternative dispute resolution, I know that they do not instantly transform the social order.

Courts are limited in the kinds of disputes they can hear and the sorts of relief they can provide. Moreover, major court cases and other moments of reform in American history often result in legislative backlash and a “recalibration,” as my colleague Stuart Chinn has argued. Those reactions may slow or even undermine the momentum for social change.

And even famously “just” verdicts haven’t necessarily pushed U.S. society in a linear direction toward its constitutional ideals.

Black woman in a face masks cries on a city street, with a hand over her mouth
A woman in New York weeps after the guilty verdict was announced in the Derek Chauvin murder trial on April 20, 2021. David Dee Delgado/Getty Images

Big verdicts, slow change

A well-known example is Brown v. Board of Education, in which the Supreme Court held unanimously that the doctrine of “separate but equal” in public schools violated the 14th Amendment.

The 1954 Brown decision, which ended legal segregation in the nation’s schools, inspired civil rights activists, drew broader attention to the struggle for racial equality and was instrumental in enforcing and encouraging racial desegregation.

But the main objectives of Brown – integrating public schools and leveling the educational playing field – have not been realized.

Many schools are still effectively segregated, in part because of ongoing legal and practical challenges associated with integration. In the 1974 case Milliken v. Bradley, for example, the Supreme Court limited the ability of federal courts to compel integration across school districts. That decision, handed down 20 years after Brown v. Board of Education, has made it difficult if not impossible to fulfill Brown’s promise of integration.

Black journalists read papers touting decision in Brown v. Board
Brown v. Board of Education made front-page headlines seven decades ago, but school segregation remains a problem nationwide. Bettmann / Contributor via Getty

Another instructive example from the same era is Gideon v. Wainwright. In the Gideon case, the Supreme Court held that under the Sixth Amendment, the state must provide attorneys to criminal defendants who could not otherwise afford them.

Following through on this constitutional mandate has proven difficult. Many parts of the country allocate grossly inadequate resources to the defense of indigent defendants. New Orleans’ 60 public defenders, for example, handle approximately 20,000 cases each year, according to a 2017 report.

Without timely access to legal counsel, many low-income defendants languish in jail for prolonged periods before their case gets to trial, while waiting to be assigned a public defender. Others are pressured into unwanted or unjust plea bargains by lawyers buried under crushing caseloads.

Necessary but not sufficient

Law students learn by the end of their grueling first year that trials alone are not effective mechanisms for addressing complex social and political problems.

Yet landmark trials are important. Legal proceedings are opportunities to articulate and reinforce American ideals around equality and justice and to expose bias and unfairness. They calibrate and restrain state power, test the merit of legal claims and create a public record.

Trials are an official public rendering of guilt or liability. Without them, the United States would lose much of the law’s ability to inspire and call attention to social change.

But as the Brown and Gideon cases show, legal decisions grounded in constitutional ideals of equality and justice do not automatically lead to an individual or collective moral reckoning.

Implementing the aspirational ideals set forth in landmark verdicts requires legislation, systems design, negotiation, collaboration, dialogue, activism and education.

Legal alternatives, too, such as restorative justice – which provides both perpetrators and victims with alternative routes to accountability and healing – increasingly are recognized as crucial tools for managing individual disputes and moving society toward greater justice.

Assessing the Chauvin trial

The legal proceedings around George Floyd’s murder aren’t actually over yet.

Still to come are the prosecution of the other Minneapolis officers present at Floyd’s killing and a federal civil rights case against Chauvin and his fellow officers. There will likely be an appeal process, too; legal verdicts can be overturned.

Ultimately, however, the meaning of the Chauvin murder trial within the larger context of the struggle for racial justice will depend, in part, on how people outside the courtroom respond to calls for reform.

A large crowd celebrates the Chauvin verdict outside Cup Foods in Minneapolis, where George Floyd was murdered
Minneapolis residents celebrate the Chauvin guilty verdict at the site of George Floyd’s murder. Nathan Howard/Getty Images

This explains why so many people reacted to the Chauvin verdict with relief and also something akin to dissatisfaction. They realized that one guilty verdict, standing on its own, is not enough to address persistent and systemic inequities in the United States.

Police departments and officers, city officials, activists, community members, business owners, state and federal actors – all of these people share collective responsibility for defining George Floyd’s legacy in modern American history.

Landmark cases are moments in time; legacies unfold over generations. If Americans want safer communities and more ethical policing, the work starts now.

Republished with permission under license from The Conversation.

Civil Rights, Criminal Law, Race

Phylicia Rashad was right! There was a miscarriage of justice!

by Randall Hill, Court.rchp.com

When Phylicia Rashad tweeted, “A terrible wrong is being righted — a miscarriage of justice is corrected!”, she was absolutely correct! It's unfortunate she felt pressure to apologize for telling the truth! However, the terrible wrong can never truely be righted because Bill Cosby and his family can never regain his lost time spent in prison!

Because of assurances from Bruce L. Castor Jr. who was then the Montgomery County, Pa. district attorney, Dr. Bill Cosby sat for depositions in a lawsuit filed against him by Andrea Constand, which he paid her $3.38 million to settle in 2006.

The reason Court.rchp.com exist is to help educate black people about the law and to help them help themselves in a court of law by acting as their own attorney when no other option exist. This case illustrates how even a rich black man can become a victim of mass incarceration. Bill Cosby probably would never have served a single day in jail if he was a wealthy white man. For those that might want to compare Dr. Cosby's case to Harvey Weinstein's, the circumstances and weight of evidence were totally different. There was nothing in the Weinstein case to indicate that the charges should not have been filed.

Applying common sense, most likely at some point, Mr. Castor and Ms. Constand had a discussion where he explained there was not enough evidence to get a conviction and that he would be willing to waive prosecution so that her civil suit could move forward and she agreed. If so, Constand knowingly chose money over criminal prosecution. Kevin Steele, a subsequent district attorney reversed Mr. Castor’s decision and charged the entertainer with assaulting Ms. Constand.

If not but for the assurance not to prosecute, Dr. Cosby certainly would have exercised his fifth amendment right to not self incriminate. Cosby never admitted to sexual abuse, he simply admitted that he had at one time given women he wanted to have sex with quaaludes. Read the deposition for yourself, the topic of quaaludes begin on page eight of the pdf file (page 5 of the deposition).  Providing the quaaludes would probably have been illegal under the drug laws and therefore incriminating, which was mentioned in the deposition.

Here is a list of miscarriages of justice:

  • The prosecutor's promise was not honored.
  • Bill Cosby's deposition should never have been made public.
  • Bill Cosby should never have been charged.
  • The judge should have dismissed the case and a trial should never have taken place.
  • Andrea Constand should not have been allowed to violate her confidentiality agreement.
  • A second trial certainly shouldn't have taken place
  • Testimony by women excluded during the first trial should not have been allowed in the second trial.
  • Bill Cosby should not have been denied bail while his case was on appeal.
  • Bill Cosby should never have done one day in jail, because he was never legitimately found guilty of any crime.
  • Bill Cosby should have been released during the Covid-19 Pandemic.
  • Bill Cosby could have died or been killed while in prison before being exonerated.

Innocent Until Proven Guilty

The cornerstone of our criminal justice system is presumption of innocense until proven guilty. The state failed to legitimately prove Bill Cosby guilty, therefore he is innocent.

Judge Joe Brown explains why Bill Cosby is innocent:

The Pennsyvana Supreme Court stated the following in their decision concerning the Cosby case, “We hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced,”. The Supreme Court's decision restores Bill Cosby's innocent status under the law. 

Many of the points I made in a 2015 article concerning Bill Cosby are relevant. I don't know who is telling the truth, however, it's common knowledge that many women submitted to the casting couch to become actresses. It's hard to apply a current standard to the past. Today, the standard is for a woman to stand in her truth, however, a different standard existed years ago. It's not my intention to be insensitive to the accusors, but most of the accusors didn't come forward until after their statute of limitations had expired. The statute of limitations is the legal equivalent of "speak now or forever hold your peace," at least in a court of law. The statute of limitations for sexual offenses in 2015 ranged between 5-20 years, however, 16 states had no statute of limitations for rape. I guess we are to assume Cosby chose not to pursue any women from those 16 states.

I must also be mindful of the proverb, "hell has no furry like a woman's scorn," which may be sexist by today's standard, but still might be relevant. Some people are particulary attracted to celebrity. It's conceivable that some of the accusors willingly participated in exchange for the promise of a a career that never materialized or a continued relationship only to be slighted. Some accusors may have simply jumped on the bus for notoriety, social media fame or monetary gain. People do lie and sometimes there are misunderstandings about what happened; which is why allegations must be proven in court. 

Andrea Constand sold her right "speak now" in a court of law for $3.38 million when she signed that confidentiality agreement. That is a proven fact, however, the accusors have proven nothing! Regardless of what the court of public opinion has determined, Dr. Cosby is innocent under the law and by that standard, Phylicia Rashad's statement was true. 

Education, Race

Racism lurks behind decisions to deny Black high school students from being recognized as the top in their class

Court.rchp.com editorial note: by Randall Hill

This article hits close to home. My oldest son graduated from high school in 2012. His friend, a young lady who had been the number one ranked student in his class since freshman year and who had been named as valedictorian was told on the last day of school that she had been replaced as valedictorian by an Asian student. The reason given was that the other student had taken one more AP class, however, many suspected foul play. The young lady, who was also the daughter of my co-worker was named salutatorian and the situation ruined her graduation experience. Tragically, the young lady died in an auto accident while returning to the school where she was working towards her Master's Degree.

by Jamel K. Donnor, William & Mary

Two Black students – Ikeria Washington and Layla Temple – were named valedictorian and salutatorian at West Point High School in Mississippi in 2021. Shortly afterward, two white parents questioned whether school officials had correctly calculated the top academic honors.

Ultimately, the school superintendent named two white students as “co-valedictorian” and “co-salutatorian” on the day of graduation.

High school seniors with the highest GPA in their graduating class are chosen to be valedictorians and are often responsible for delivering the graduating speech. Salutatorians, who are high school seniors with the second-highest GPA in their graduating class, often give the opening remarks.

The superintendent attributed the mix-up to a new school counselor who was given incorrect information on how to calculate class rankings.

As an educational researcher who focuses on race and inequality, I am aware that the controversy at West Point High School is by no means isolated.

Was ‘white fragility’ the reason behind two Black Mississippi high schoolers’ losing their valedictorian/salutatorian status? Sue Barr/Getty Images

 

A history of overlooking Black valedictorians

Back in 1991 a federal judge in Covington, Georgia, resolved a dispute a Black high school senior had with a white student over who gets to be valedictorian by making them share the honor.

Then in 2012 in Gainesville, Georgia, another Black valedictorian was also forced to share the honor with a white student. Later, the white student’s family asked the school to drop his candidacy from the academic honor.

In 2011, Kymberly Wimberly, a Black student in Little Rock, Arkansas, had her valedictorian honor stripped away by her principal to be given to a white student with a lower GPA. Wimberly’s lowest grade during all four years of high school was a B. In the rest of Wimberly’s courses, honors and Advanced Placement courses, she received A’s.

In her lawsuit, Wimberly claimed that a day after being informed that she was the valedictorian for McGehee High School, the principal told her mother, Molly Bratton, that he “decided to name a white student as co-valedictorian.”

I became familiar with these kinds of valedictorian disputes when I examined the 2017 lawsuit of Jasmine Shepard. A student at Cleveland High School in Mississippi, Shepard had the highest grade-point average in her class.

However, the day before graduation, she was forced to be co-valedictorian with Heather Bouse, a white student with a lower GPA.

How ‘white fragility’ plays out

In my peer-reviewed article analyzing Shepard’s case, I examined it from the standpoint of critical race theory. Critical race theory is a theoretical framework that examines racism as a social construct ingrained in the American legal and political system.

In my analysis, I conclude that the decisions to force Black students to share top honors with white students result from a psychological discomfort known as “white fragility.” This is a state of stress experienced by some white people when they are presented with information about people of color that challenges their sense of entitlement.

I maintain that when students of color are named top students in their graduating class, as Shepard was in 2016, white society may begin to fear that students of color are encroaching upon their social turf, so to speak.

A legal perspective

I believe the disputes that arise when Black students are named valedictorian should be viewed in the context of white fragility.

For example, consider what happened when a federal judge ordered the Cleveland, Mississippi, school district to desegregate in 2017 after having failed to do so in 1969 after the Brown v. Board of Education case.

After the 2017 order, The New York Times reported that many whites in Cleveland “feared” that “dismantling the system would prompt whites to do what they have done in so many other Delta cities: decamp en masse for private schools, or move away.” This is known as “white flight.”

In the instance of Jasmine Shepard, too, I contend that white fragility and the fear of white flight were at play.

A key factor contributing to Heather Bouse’s being named co-valedictorian with Shepard was that Bouse had received credit for an unapproved Advanced Placement course in online physics, according to court transcripts that I examined.

The school policy requires that it publicize all of the courses available to students in the district. Unfortunately, the school administrators failed to inform students, parents and school counselors that the online physics course was available.

According to Judge Debra M. Brown, the superintendent and the district’s assistant superintendent for curriculum assessment and instruction “incorrectly believed” that the school district was authorized to offer online courses for credit that would count toward students’ graduation requirements. Bouse’s online physics course was “designated as advanced, which resulted in six rank points.”

Based on the credit awarded for this unapproved online physics course, Bouse’s overall GPA was inflated, while Shepard’s GPA was wrongly calculated. This was because her guidance counselor had re-enrolled her in a desktop publishing course in which she had already received an A.

As a matter of policy it was “contrary to the School District’s practices for student to receive credit for a course she had already completed and earned an ‘A,’” according to the complaint. This re-enrolling led to Shepard’s overall GPA being lowered, which is discussed in her complaint.

A different student filed a very similar lawsuit to Shepard’s in 2018. In that lawsuit, Olecia James argued that Cleveland School District officials were “reducing the quality points she earned from courses she had taken.” Quality points are another metric of a student’s grades.

Ultimately this prevented her from becoming Cleveland High School’s first Black salutatorian.

The stakes associated with being valedictorian and salutatorian are already high. Competition for college admission increases every year.

Unfortunately, as in the incident involving Ikeria Washington and Layla Temple at West Point High School reveals, when the honorees are African American, there have been instances in which people have questioned the validity of the outcome.

My research suggests that whenever a Black student’s status as valedictorian or salutatorian is questioned, it pays to ask questions. Is it being questioned for a legitimate reason? Or might racism or white fragility be at play?

Republished with permission under license from The Conversation.

Education, History, Race

Critical race theory: What it is and what it isn’t

Court.rchp.com Editorial note: by Randall Hill

Every institution in the United States has declared war on black people and as Sun tzu stated over 2,500 hundred years ago; "All warfare is based on deception".

The educational system does not educate people about black history, except for a white washed version of slavery and the peaceful non-threatning aspects of the civil rights movement. King's "I have a dream" speech is front and center, ommitted is his "I fear I am integrating my people into a burning house speech".  

Many people today don't realize that even the church participated in deception during slavery by providing a "slave version" of the bible which only contained parts of 14 of the 66 to 73 books of the Protestant or Catholic  versions of the bible. Most people until recently had never heard of the Tulsa Massacre. Several entities including law enforcement participated in the destruction of Black Wallstreet and other sucessful black areas. After stealing our boots those same entities asked, why can't black people pull themselves up by their own bootstraps. 

If not but for the Internet, most people would still be oblivious to most issues of race. The most glaring recent example is, Darnella Frazier, the teenage girl who filmed and uploaded a video of the police torture and murder of George Floyd. Racial misinformation is another form of oppression. When you don't understand that racism has negatively impacted every aspect of society, it's impossible to understand how to take corrective measures.

Critial race theory's purpose is to reveal how oppressive laws and history are still causing harmful effects. Those who wish to promote false narratives and half truths demonize the implementation of critical race theory. 

by David Miguel Gray, University of Memphis

U.S. Rep. Jim Banks of Indiana sent a letter to fellow Republicans on June 24, 2021, stating: “As Republicans, we reject the racial essentialism that critical race theory teaches … that our institutions are racist and need to be destroyed from the ground up.”

President Lyndon Johnson signing the 1964 Civil Rights Act, which aimed to do away with racial discrimination in the law. But discrimination persisted. AP file photo


Kimberlé Crenshaw, a law professor and central figure in the development of critical race theory, said in a recent interview that critical race theory “just says, let’s pay attention to what has happened in this country, and how what has happened in this country is continuing to create differential outcomes. … Critical Race Theory … is more patriotic than those who are opposed to it because … we believe in the promises of equality. And we know we can’t get there if we can’t confront and talk honestly about inequality.”

Rep. Banks’ account is demonstrably false and typical of many people publicly declaring their opposition to critical race theory. Crenshaw’s characterization, while true, does not detail its main features. So what is critical race theory and what brought it into existence?

The development of critical race theory by legal scholars such as Derrick Bell and Crenshaw was largely a response to the slow legal progress and setbacks faced by African Americans from the end of the Civil War, in 1865, through the end of the civil rights era, in 1968. To understand critical race theory, you need to first understand the history of African American rights in the U.S.

The history

After 304 years of enslavement, then-former slaves gained equal protection under the law with passage of the 14th Amendment in 1868. The 15th Amendment, in 1870, guaranteed voting rights for men regardless of race or “previous condition of servitude.”

Between 1866 and 1877 – the period historians call “Radical Reconstruction” – African Americans began businesses, became involved in local governance and law enforcement and were elected to Congress.

This early progress was subsequently diminished by state laws throughout the American South called “Black Codes,” which limited voting rights, property rights and compensation for work; made it illegal to be unemployed or not have documented proof of employment; and could subject prisoners to work without pay on behalf of the state. These legal rollbacks were worsened by the spread of “Jim Crow” laws throughout the country requiring segregation in almost all aspects of life.

Grassroots struggles for civil rights were constant in post-Civil War America. Some historians even refer to the period from the New Deal Era, which began in 1933, to the present as “The Long Civil Rights Movement.”

The period stretching from Brown v. Board of Education in 1954, which found school segregation to be unconstitutional, to the Fair Housing Act of 1968, which prohibited discrimination in housing, was especially productive.

The civil rights movement used practices such as civil disobedience, nonviolent protest, grassroots organizing and legal challenges to advance civil rights. The U.S.’s need to improve its image abroad during the Cold War importantly aided these advancements. The movement succeeded in banning explicit legal discrimination and segregation, promoted equal access to work and housing and extended federal protection of voting rights.

However, the movement that produced legal advances had no effect on the increasing racial wealth gap between Blacks and whites, while school and housing segregation persisted.

A young Black man on a skateboard pushes his son in a stroller on a sidewalk past blighted buildings in Baltimore.
The racial wealth gap between Blacks and whites has persisted. Here, Carde Cornish takes his son past blighted buildings in Baltimore. ‘Our race issues aren’t necessarily toward individuals who are white, but it is towards the system that keeps us all down, one, but keeps Black people disproportionally down a lot more than anybody else,’ he said. AP Photo/Matt Rourke

What critical race theory is

Critical race theory is a field of intellectual inquiry that demonstrates the legal codification of racism in America.

Through the study of law and U.S. history, it attempts to reveal how racial oppression shaped the legal fabric of the U.S. Critical race theory is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law.

There are a few beliefs commonly held by most critical race theorists.

First, race is not fundamentally or essentially a matter of biology, but rather a social construct. While physical features and geographic origin play a part in making up what we think of as race, societies will often make up the rest of what we think of as race. For instance, 19th- and early-20th-century scientists and politicians frequently described people of color as intellectually or morally inferior, and used those false descriptions to justify oppression and discrimination.

Legal scholar Kimberlé Crenshaw, who devised the term ‘critical race theory,’ explains what it is – and isn’t.

Second, these racial views have been codified into the nation’s foundational documents and legal system. For evidence of that, look no further than the “Three-Fifths Compromise” in the Constitution, whereby slaves, denied the right to vote, were nonetheless treated as part of the population for increasing congressional representation of slave-holding states.

Third, given the pervasiveness of racism in our legal system and institutions, racism is not aberrant, but a normal part of life.

Fourth, multiple elements, such as race and gender, can lead to kinds of compounded discrimination that lack the civil rights protections given to individual, protected categories. For example, Crenshaw has forcibly argued that there is a lack of legal protection for Black women as a category. The courts have treated Black women as Black, or women, but not both in discrimination cases – despite the fact that they may have experienced discrimination because they were both.

These beliefs are shared by scholars in a variety of fields who explore the role of racism in areas such as education, health care and history.

Finally, critical race theorists are interested not just in studying the law and systems of racism, but in changing them for the better.

What critical race theory is not

Florida Gov. Ron DeSantis, giving his version of what critical race theory is.

“Critical race theory” has become a catch-all phrase among legislators attempting to ban a wide array of teaching practices concerning race. State legislators in Arizona, Arkansas, Idaho, Missouri, North Carolina, Oklahoma, South Carolina, Texas and West Virginia have introduced legislation banning what they believe to be critical race theory from schools.

But what is being banned in education, and what many media outlets and legislators are calling “critical race theory,” is far from it. Here are sections from identical legislation in Oklahoma and Tennessee that propose to ban the teaching of these concepts. As a philosopher of race and racism, I can safely say that critical race theory does not assert the following:

(1) One race or sex is inherently superior to another race or sex;

(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;

(4) An individual’s moral character is determined by the individual’s race or sex;

(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.

What most of these bills go on to do is limit the presentation of educational materials that suggest that Americans do not live in a meritocracy, that foundational elements of U.S. laws are racist, and that racism is a perpetual struggle from which America has not escaped.

Americans are used to viewing their history through a triumphalist lens, where we overcome hardships, defeat our British oppressors and create a country where all are free with equal access to opportunities.

Obviously, not all of that is true.

Critical race theory provides techniques to analyze U.S. history and legal institutions by acknowledging that racial problems do not go away when we leave them unaddressed.

Republished with permission under license from The Conversation.

History, Massacre, Race, Terror

100 years after the Tulsa Race Massacre, lessons from my grandfather

by Gregory B. Fairchild, University of Virginia

When Viola Fletcher, 107, appeared before Congress in May 2021, she called for the nation to officially acknowledge the Tulsa race riot of 1921.

I know that place and year well. As is the case with Fletcher – who is one of the last living survivors of the massacre, which took place when she was 7 – the terror of the Tulsa race riot is something that has been with me for almost as long as I can remember. My grandfather, Robert Fairchild, told the story nearly a quarter-century ago to several newspapers.

Here’s how The Washington Post recounted his story in 1996:

“At 92 years old, Robert Fairchild is losing his hearing, but he can still make out the distant shouts of angry white men firing guns late into the night 75 years ago. His eyes are not what they used to be, but he has no trouble seeing the dense, gray smoke swallowing his neighbors’ houses as he walked home from a graduation rehearsal, a frightened boy of 17.

His has since been a life of middle-class comfort, a good job working for the city, a warm family life. But he has never forgotten his mother’s anguish in 1921 as she fled toward the railroad tracks to escape the mobs and fires tearing through the vibrant Black neighborhood of Greenwood in north Tulsa.”

“There was just nothing left,” Fairchild told the newspaper.

Smoke rises from damaged properties after the Tulsa race massacre in Tulsa, Oklahoma in June 1921.
Oklahoma Historical Society via Getty Images


The Washington Post article said the Tulsa race riots of 1921 were among the “worst race riots in the nation’s history.” It reported: “The death toll during the 12-hour rampage is still in dispute, but estimates have put it as high as 250. More than 1,000 businesses and homes were burned to the ground, scores of Black families were herded into cattle pens at the fairgrounds, and one of the largest and most prosperous Black communities in the United States was turned to ashes.”

During the Tulsa race riots in 1921, Black businesses and homes in the Greenwood District in Tulsa, Oklahoma, were destroyed at the hands of white residents. Bettmann Archive/Getty Images

Riots began after a white mob attempted to lynch a teenager falsely accused of assaulting a white woman. Black residents came to his defense, some armed. The groups traded shots, and mob violence followed. My family eventually returned to a decimated street. Miraculously their home on Latimer Avenue was spared.

Disturbing history

Hearing about these experiences at the family table was troubling enough. Reading a newspaper account of your ancestors’ fleeing for their lives is a surreal pain. There’s recognition of your family’s terror, and relief in knowing your family survived what “60 Minutes” once called “one of the worst race massacres in American history.”

In spite of my grandfather’s witness, this same event didn’t merit inclusion in any of my assigned history texts, either in high school or college. On the occasions I’ve mentioned this history to my colleagues, they’ve been astonished.

In 1996, at the 75th anniversary of the massacre, the city of Tulsa finally acknowledged what had happened. Community leaders from different backgrounds publicly recognized the devastation wrought by the riots. They gathered in a church that had been torched in the riot and since rebuilt. My grandfather told The New York Times then that he was “extremely pleased that Tulsa has taken this occasion seriously.”

“A mistake has been made,” he told the paper, “and this is a way to really look at it, then look toward the future and try to make sure it never happens again.”

An African American couple walking across a street in Tulsa, Oklahoma, June 1921.
Oklahoma Historical Society/Getty Images

That it took so long for the city to acknowledge what took place shows how selective society can be when it comes to which historical events it chooses to remember – and which ones to overlook. The history that society colludes to avoid publicly is necessarily remembered privately.

Economically vibrant

Even with massive destruction, the area of North Tulsa, known as Greenwood, became known for its economic vitality. On the blocks surrounding the corner of Archer Street and Greenwood Avenue in the 1930s, a thriving business district flourished with retail shops, entertainment venues and high-end services. One of these businesses was the Oklahoma Eagle, a Black-owned newspaper. As a teenager in the early 1940s, my father had his first job delivering the paper.

Without knowing the history, it would be a surprise to the casual observer that years earlier everything in this neighborhood had been razed to the ground. The Black Wall Street Memorial, a black marble monolith, sits outside the Greenwood Cultural Center. The memorial is dedicated to the entrepreneurs and pioneers who made Greenwood Avenue what it was both before and after it was destroyed in the 1921 riot.

Although I grew up on military bases across the world, I would visit Greenwood many times over the years. As I grew into my teenage years in the 1970s, I recognized that the former vibrant community was beginning to decline. Some of this was due to the destructive effects of urban renewal and displacement. As with many other Black communities across the country, parts of Greenwood were razed to make way for highways.

Some of the decline was due to the exit of financial institutions, including banks. This contributed to a decrease in opportunities to build wealth, including savings and investment products, loans for homes and businesses, and funding to help build health clinics and affordable housing.

And at least some was due to the diminished loyalty of residents to Black-owned businesses and institutions. During the civil rights movement, downtown Tulsa businesses began to allow Black people into their doors as customers. As a result, Black residents spent less money in their community.

Historical lessons

At the end of my father’s military career in the 1970s, he became a community development banker in Virginia. His work involved bringing together institutions – investors, financial institutions, philanthropists, local governments – to develop innovative development solutions for areas like Greenwood. For me, there are lessons in the experiences of three generations – my grandfather’s, father’s and mine – that influence my scholarly work today.

On the one hand, I study how years after the end of legal segregation Americans remain racially separate in our neighborhoods, schools and workplaces and at alarmingly high levels. My research has shown how segregation depresses economic and social outcomes. In short, segregation creates closed markets that stunt economic activity, especially in the Black community.

On the other hand, I focus on solutions. One avenue of work involves examining the business models of Community Development Financial Institutions, or CDFIs, and Minority Depository Institutions, or MDIs. These are financial institutions that are committed to economic development – banks, credit unions, loan funds, equity funds – that operate in low- and moderate-income neighborhoods. They offer what was sorely needed in North Tulsa, and many other neighborhoods across the nation – locally attuned financial institutions that understand the unique challenges families and businesses face in minority communities.

Righting historical wrongs

There are interventions we can take, locally and nationally, that recognize centuries of financial and social constraint. Initiatives like the 2020 decision by the Small Business Administration and U.S. Treasury to allocate US$10 billion to lenders that focus funds on disadvantaged areas are a start. These types of programs are needed even when there aren’t full-scale economic and social crises are taking place, like the COVID-19 epidemic or protesters in the street. Years of institutional barriers and racial wealth gaps cannot be redressed unless there’s a recognition that capital matters.

The 1921 Tulsa race riot began on May 31, only weeks before the annual celebration of Juneteenth, which is observed on June 19. As communities across the country begin recognizing Juneteenth and leading corporations move to celebrate it, it’s important to remember the story behind Juneteenth – slaves weren’t informed that they were emancipated.

After the celebrations, there’s hard work ahead. From my grandfather’s memory of the riot’s devastation to my own work addressing low-income communities’ economic challenges, I have come to see that change requires harnessing economic, governmental and nonprofit solutions that recognize and speak openly about the significant residential, educational and workplace racial segregation that still exists in the United States today.

Republished with permission under license from The Conversation.

Education, Race

Closures of Black K-12 schools across the nation threaten neighborhood stability

by Jerome Morris, University of Missouri-St. Louis

Residents of the St. Louis neighborhood known as The Ville have been fighting for years to stop the closing of Charles H. Sumner High School, the oldest historically Black high school west of the Mississippi River.

Sumner High School has been under repeated threats of closure from the school board and the superintendent, who cite declining enrollment. The most recent such threat arose in December 2020.

Established in 1875, Sumner High is named after a former U.S. senator who vehemently opposed slavery. The school’s alumni represent a who’s who of Black people, including rock stars Tina Turner and Chuck Berry, comedian and civil rights activist Dick Gregory and tennis legend Arthur Ashe.

A June 2021 protest to keep Dunbar Elementary School in St. Louis from becoming a virtual-only school. Tenille Rose Martin, CC BY-NC-ND

Throughout Black people’s history in the U.S., predominantly Black K-12 schools have served as pillars in Black communities. Their importance is second only in significance to the Black church. Neighborhood schools help stabilize communities and foster a sense of belonging for children, serving as a foundation for academic achievement.

This is why many parents, community members, activists and even researchers like me who have studied contemporary Black K-12 schools find the shuttering of predominantly Black schools – despite the rich history and success of some of these schools – to be disconcerting.

High school class photo from 1931
Graduating class of Sumner High School in January 1931. Missouri Historical Society

Epidemic of closings

Sumner High has been spared for the time being.

But other historically Black schools, such as Paul Laurence Dunbar Elementary in St. Louis, have not been so lucky. Dunbar Elementary, named after the famous Black poet and writer, will no longer physically enroll students. District leaders said they want to convert Dunbar to a virtual school beginning in August 2021. This led parents, community members and activists to protest the superintendent and school board’s decision, asserting that the physical closing of the school removes a key pillar in the historic Black Jeff-Vander-Lou neighborhood.

Two urban schools that I have researched, both renowned for educating low-income Black students, were also recently shuttered. Gentrification and the emergence of charter schools contributed to an enrollment decline at Whitefoord Elementary in Atlanta, leading it to close its doors in 2017 after serving the community for 93 years. Farragut Elementary in St. Louis – also located in The Ville – closed in May 2021. The rationale once more: declining enrollment.

As recently as the early 2000s, Black students attending Whitefoord and Farragut outperformed Black students at other schools in their respective cities, including those at magnet and charter schools, on standardized tests.

These school closings are part of an epidemic of Black public school closures in U.S. cities across the country, including in Atlanta, St. Louis, New Orleans, Baltimore and Chicago.

According to the National Center for Education Statistics, 1,310 schools closed in 2017-18, affecting 267,000 students.

Black and poor students are disproportionately affected by these closures. For example, Black students comprise 31% of the students in urban public schools but represent 61% of students in those that closed.

Human costs

Sumner High School stands just 10 miles from the streets of Ferguson, Missouri, where protesters marched throughout the summer of 2014 to demand justice for the police killing of Michael Brown.

Protest flyer with photos of St. Louis public school buildings
Flyer for a rally in St. Louis to protest the closing of neighborhood schools in Black communities.

Amid national rallying cries and hashtags that “Black Lives Matter,” I believe greater attention needs to be given to efforts aimed at stopping the closing of Black K-12 public schools. Just as the Black Lives Matter movement demands a stop to the unjust killing of Black people, residents of predominantly Black communities throughout the U.S. are also fighting to stop the killing of their communities through school closures.

Superintendents and school boards often present their cases for closing schools using race-neutral language and statistics about low performance, dwindling enrollments and high operating costs. Rarely factored into the equation are the historical and social circumstances and policies – racism, persistent underfunding of Black education, redlining, disinvestment in Black neighborhoods and desegregation – that gave rise to those statistics.

Moreover, missing from these analyses are the human costs related to closing schools in already struggling neighborhoods. When policymakers remove schools from vulnerable communities, they remove some of the few stabilizing institutions. These buildings often sit vacant for years and become eyesores and objects of vandalism.

Racial reckoning

I raise these concerns within this time of racial reckoning that purports to value Black institutions. A rush of philanthropic and governmental dollars as a result of protests for Black lives has recently targeted Black businesses, civil rights and social justice organizations, as well as historically Black colleges and universities, or HBCUs.

HBCUs have rightfully received additional resources for their work educating generations of Black students. But I believe that to serve Black children, proponents of Black education must extend this support to include Black K-12 public schools. I see three main reasons for this.

First, of the 7.7 million Black children who attend public elementary or high schools today, 3.3 million go to schools that are 50% or more Black. Almost 2 million Black students attend schools that are at least 75% Black. Conversely, roughly 200,000 Black students attended the nation’s HBCUs in 2018.

I find it disingenuous for governmental agencies and philanthropies to provide economic support to Black students at the university level but not at the K-12 level, which comprises the most critical phases of their educational and social development.

Second, the circumstances for Black students who abruptly leave closed schools do not get better. Students from closed schools often experience a decline in math test scores, rarely transfer to better-performing schools and suffer social and academic disruption.

And finally, saving Black K-12 public schools is linked to broader efforts to support Black communities, families and children. In supporting Black schools, policymakers can help re-anchor struggling Black communities. This holistic focus entails supporting families with education and job-training programs, stimulating local Black-owned businesses and supporting neighborhood organizations that serve kids and families.

Next steps

How can this be done? As with the recent passage of stimulus bills to stabilize the economy and families affected by COVID-19, governmental and philanthropic dollars must complement local dollars to counter funding gaps for schools that predominantly serve Black students and improve the infrastructure of those schools.

Providing financial support to end the massive closing of K-12 Black public schools – which are charged with educating millions of Black students on the racial and economic margins – would make an emphatic statement that Black lives truly matter.The Conversation

Republished with permission under license from The Conversation. 

Poverty, Race, Traffic

Driver’s license suspensions for failure to pay fines inflict particular harm on Black drivers

By Sian Mughan, Arizona State University

Imagine being unable to pay a US$50 traffic ticket and, as a result, facing mounting fees so high that even after paying hundreds, maybe thousands, of dollars toward your debt you still owe money.

Imagine being fired from your job because you’ve been forced to use unreliable public transportation instead of your car.

And imagine going to jail several times because, even though your license is suspended, you had to drive to work.

These are some of the situations facing millions of Americans who were unable to pay fines – and whose lives were turned into a nightmare by overly punitive policies in response.

And these policies have an outsize, and damaging, impact on Black Americans, according to our research.

Black drivers are more likely to encounter police regardless of how they drive, research shows. Rich Legg/Getty Images

Cycles of debt

Most cities and states have policies that allow them to suspend a driver’s license for nonpayment of fines and fees, most commonly traffic fines.

These policies are so popular that judges have described them as “the most valuable tool available to the municipal courts for inducing payment on past due accounts.”

Studying the effects of these policies can be difficult because there is no uniform national reporting of crime statistics.

Anecdotal evidence suggests that failure to pay fines – not dangerous driving – is the most common reason for driver’s license suspensions in the United States.

And research indicates that these burdens are primarily borne by low-income people and people of color.

As a public affairs scholar who has written extensively about labor markets and criminal justice systems, I’ve conducted research with Joanna Carroll supports these conclusions.

But it also illuminates a previously unknown racial inequality of the policy.

Our research suggests that, by appearing on the driver’s record, license suspensions increase the probability that Black – but not white – drivers incur more traffic tickets. Even after the debt is paid and the license regained, these suspensions continue to harm drivers, and these harms exclusively affect Black drivers.

This shows that suspensions don’t just trap people in a cycle of mounting debt but also a cycle of negative interactions with the criminal justice system.

Long-term impact of suspensions

We studied a sample of over 2,000 drivers who received traffic tickets in Marion County, Indiana, home to Indianapolis, between 2011 and 2016.

In that county, if a driver fails to pay or contest a ticket within 72 days, their license is automatically suspended. This means that judges and other members of the justice system cannot choose who receives a suspension.

Every driver in our sample paid their ticket in the days surrounding the payment deadline.

This is an ideal environment to study the long-term impacts of suspensions because it creates two groups of people that are easily comparable: those who paid the ticket right before the deadline, thus avoiding a suspension, and those who paid after the deadline and received a suspension.

We found that Black drivers who received a failure-to-pay suspension increased their likelihood of getting another ticket by up to nine percentage points. White drivers, meanwhile, saw a roughly three percentage point decrease in their likelihood of getting another ticket.

We attempted to identify differences between white and Black drivers that might explain this result but were unable to do so. For example, Black drivers are not committing more offenses than white drivers, nor are the offenses they commit more serious. Black drivers are just as likely as white drivers to pay their tickets. And Black drivers are more likely than white drivers to reinstate their license after the suspension.

Moreover, regardless of race, following the suspension, drivers with larger fines are less likely to receive another ticket, suggesting that all drivers drive more cautiously after getting a suspension, likely to reduce the probability of receiving another ticket. This is consistent with previous studies on the effects of traffic policies, which show traffic enforcement leads to safer driving.

Ineffective strategies for Black drivers

We believe the most convincing explanation for our findings is that driving “better” to avoid being pulled over is an ineffective strategy for Black drivers, who are more likely to have an encounter with police regardless of how they drive.

This interpretation is consistent with studies showing Black people are more likely to be pulled over without cause. After pulling over a Black driver, the police officer discovers the prior failure-to-pay suspension and becomes more likely to issue a ticket.

This sequence of events does not occur when the driver is white because white drivers are able to minimize the chance of being pulled over by changing their driving behavior.

Our research is the first to study failure-to-pay suspensions in the United States, and it’s the first to demonstrate that they exert disproportionate harm on Black drivers.

This evidence could prove relevant to policymakers in states across the county who are currently debating discontinuing license suspension for nonpayment of legal debts.

Dr. Joanna Carroll co-authored this research while she was at Indiana University. She currently works at the Government Accountability Office.The Conversation

Republished with permission under license from The Conversation.

Taxes

IRS hitting you with a fine or late fee? Don’t fret – a consumer tax advocate says you still have options

By Rita W. Green, University of Memphis

Tax Day has come and gone, and you think you filed your return in the nick of time. But several weeks later you receive that dreaded letter in the mail from the Internal Revenue Service informing you of missing the deadline and failing to pay your tax bill on time. Your assessed tax penalty, based on what you owe, is $450.

This type of scenario is quite common, since penalties are assessed for over 40 million taxpayers each year, according to the Taxpayer Advocacy Panel’s 2020 report. There are numerous IRS penalties, but the three most common ones are failure to file a return on time, failure to pay the estimated amount owed from the past year and failure to pay after filing.

For many taxpayers, it doesn’t end on Tax Day. Constantine Johnny/ Moment via Getty Images

What many people don’t know is that the IRS offers several ways to reduce late fees and other penalties. Yet only a fraction of those who are eligible take advantage of them.

As a professor of accounting and a consumer advocate, I tend to be concerned when I identify a benefit that has been underutilized. I also serve as a volunteer on the Taxpayer Advocacy Panel, an independent body that aims to help the IRS improve based on outreach and feedback from the general public.

We recently discussed the low utilization of a key penalty relief program, which prompted me to write this article.

Applying for penalty relief

The main form of relief the IRS offers to taxpayers is the first-time penalty abatement policy, which was introduced about two decades ago. It covers penalties related to a failure to file, a failure to pay or a failure to deposit the estimated taxes owed.

This program can lead to a reduction or even removal of a taxpayer’s penalty – though not the tax liability – if you meet certain conditions:

  • You didn’t previously have to file a return – because you earned too little money, for example – or you’ve had no penalties for the previous three years.

  • You filed all required returns or extensions.

  • You paid or arranged to pay any tax due.

It’s also available to taxpayers who live in areas affected by specific disasters for whom the tax deadline has been extended.

If you currently meet the first two requirements, you can still make arrangements to pay the tax you owe and then request the abatement.

In 2019, only 12% of the penalties for failure to file and failure to pay were abated.

The most common reason for the low number of abatements appears to be that many taxpayers who would otherwise qualify for relief aren’t aware this program even exists. Requesting relief is as simple as phoning the IRS and requesting it, or you may ask for it in writing.

Other resources available

In addition to penalty prevention and penalty relief, other resources are available to taxpayers who need help after Tax Day.

The taxpayer advocate service is an independent organization within the IRS, and its local taxpayer advocates provide free help to any taxpayer to provide guidance through the process of resolving tax problems. There’s at least one in every state.

The IRS also supports Low-Income Tax Clinics, which are staffed with attorneys and other professionals to help low-income filers with tax disputes that may require legal intervention. While it can be difficult to reverse penalties or challenge other IRS decisions, taxpayers with legal help stand a much better chance of succeeding with their claims.

An ounce of penalty prevention

Many people may be familiar with Benjamin Franklin’s assertion that “an ounce of prevention is worth a pound of cure.”

No one enjoys paying taxes, but additional penalties can make a bad situation even worse. The good news is most penalties can be avoided by filing taxes on time and paying any taxes due. If you are unable to pay all of the taxes due right away, you can always establish a payment plan.

So next year, remember there are many resources available to you to make it easier to file on time – free, in most cases – and to avoid penalties. And taxpayer advocates are available to answer any tricky questions.The Conversation

Republished with permission under license from The Conversation.

Politics

States pick judges very differently from US Supreme Court appointments

by Joshua Holzer, Westminster College

The future of the U.S. Supreme Court is politically fraught.

The court’s partisan balance has long been a hot-button issue, and both Democrats and Republicans can correctly claim that the other party bears at least some blame for the politicization of the federal judiciary.

Political pressure is focusing on the makeup of the U.S. Supreme Court. Stefani Reynolds/Getty Images

 

In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice Antonin Scalia died and the U.S. Senate’s Republican majority refused to let President Barack Obama fill the vacancy.

This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative Neil Gorsuch as Scalia’s replacement. Four years later, though, Republicans rushed to fill the vacancy left by the death of liberal Justice Ruth Bader Ginsburg less than two months before a presidential election.

Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been calling for President Joe Biden to add more justices to the U.S. Supreme Court in hopes of reversing Republican efforts to enshrine conservatism within the courts.

In response to those calling for reform, Biden has created the Presidential Commission on the Supreme Court of the United States, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”

This commission – which includes scholars, lawyers and political advisers – could look at top courts overseas for ideas about how to depoliticize the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.

State court lessons for depoliticization

Following the model set by the U.S. Constitution, many state constitutions initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty rather than judicial temperament and fair-mindedness.

In the mid-1800s, populism swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the popular election of judges.

This did not solve the problem of judicial politicization, as judges were often beholden to the political machines that helped them get elected. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, between 1918 to 1940 only two Missouri Supreme Court judges were reelected.

In 1940, Missouri became the first state to adopt what is now called the “Missouri Plan” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.”

Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees based on merit. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, the governor’s pick does not usually need to be confirmed by the state legislature because the pick has already been vetted by the nonpartisan commission.

For retention elections, judges face no opponent and are listed on the ballot without political party designation. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as Illinois, nonpartisan retention elections are used when it’s time for reelection.

Today, more than 30 states use some form of assisted appointments. More than 20 states use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.

Two men shake hands
President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court sparked a partisan fight. AP Photo/Pablo Martinez Monsivais

Showing the way forward?

Advocates of Missouri’s nonpartisan court plan argue that the reforms have been a success. According to Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”

If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 promise to appoint pro-life, conservative judges would be less relevant, because presidents would be limited in whom they could nominate for a court vacancy.

Additionally, if voters could remove U.S. Supreme Court justices whose opinions differ from that of the majority of Americans, politicians might not feel as pressured to block the appointment of a particular justice for partisan reasons, as the judge would serve on the bench for only as long as they retained public support.The Conversation

Republished with permission under license from The Conversation.