Expand the court.

It happened. Justice Amy Coney Barrett was confirmed to the Supreme Court Monday evening (NPR). Judge Barrett, who is 48 years old, is likely to serve on the court for decades, solidifying a 6-3 conservative majority. It also gives her immediate power in several upcoming hearings this November that disproportionately impacts the livelihood of communities of color. This is the first time a Supreme Court nominee has been confirmed without a single vote from a major minority party since December 1869 (WSJ). Now that it’s official, inquiries on whether or not Biden, if confirmed, could expand the court, have snowballed into comprehensive calls for action.

Happy Tuesday and welcome back to the Anti-Racism Daily. Each day, we send one email to spark action – and dismantle racism and systemic oppression in the U.S. To support our work, you can donate one-time or monthly on our website, Patreon, Paypal or Venmo @nicoleacardoza.

You know, last night I opened my laptop after a long day of meetings to publish a whole different piece. And then, I checked the news. And I realized that you and I, dear reader, are going to be here for a while. Because we have a heck of a fight ahead of us for justice. If you are still reading then we're on the right track. Rest, hydrate, wash your hands and keep going. We will create the change we wish to see.

Nicole

TAKE ACTION

Sign the petition to adjust the composition of the judiciary.
Work to Flip the Senate by donating and volunteering to critical campaigns
Commit to voting – even if you feel defeated.

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By Nicole Cardoza (she/her)

Expanding the size of the court, also known as “packing the court,” is when legislators move to change the number of judges confirmed to the court. This can happen at the state and federal level of the justice system – but is clearly focused on the Supreme Court. And this is constitutional: the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act signed by the President. Article III, Section 1 of the Constitution states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (National Constitution Center).

And our earliest Presidents took full advantage of this. The size of the Supreme Court was changed six times from 1776 until 1869, wavering anywhere between five and ten seats (New York Times). Each time, by a President who needed to shift power to support their political goals, or to block incoming administration from shifting its stance. Read the specifics on the National Constitution Center website.

Those that feel strongly about the plan on both sides will reference the controversial plan by FDR, who aimed to expand the Supreme Court to as many as 15 judges for efficiency’s sake. But many felt that this was his attempt to garner support for his New Deal, and when voting patterns on the existing court changed, the case became a moot point (History). Regardless, it provided a cautionary tale that seems to haunt conversations about expanding the court today. How’s that for a spooky Halloween tale?

As a result, this constitutional act hasn’t been exercised on the federal level. But it’s important to note that packing – or unpacking – the court is a strategy used by both political parties on the state level. In fact, recent efforts to change the size of state courts have been led predominantly by Republicans. In 2016, the Republican legislature approved a measure to increase the size of the Arizona Supreme Court from five to seven justices, even though it wasn’t supported by Democrats or the judges themselves. A similar situation happened in Georgia, where the Republican-controlled General Assembly passed a bill to expand the court to nine justices. The bill also gave the Republican governor the power to fill the two new seats (Washington Post). Other recent efforts by both Democrats and Republicans have failed, often because of the opposition of the other party.

Some also argue that court-packing is similar to how the Republican party blocked President Barack Obama’s nomination of Judge Merrick B. Garland in 2016, which meant that the Supreme Court was acting with eight judges for over a year until the next election (NPR). Especially paired with the rush to confirm Judge Barrett before an election just four years later. Although the concept wasn’t exactly embraced by liberal political leaders, we can expect it to gain more traction with this confirmation.

But I’d like us to remember that this isn’t an issue of politics, but of people. Based on her decision on November 10, 20 million people could lose their healthcare if the Affordable Care Act is overturned – and in the midst of a pandemic, no less. This particularly impacts people with disabilities, who could easily be denied coverage and disability-related services from other healthcare providers (Progressive). A ruling on November 4 will decide whether private agencies that receive taxpayer funding for government services, such as foster care providers, can deny services to people who are LGBTQ+, Jewish, Muslim, or Mormon – and Judge Barrett is expected to vote in favor of the discrimination (Bustle). On November 9, the court will hear a case on immigration; an effort to make deportation proceedings more accurate and preserving “relief of removal”. Judge Barrett is likely to vote against immigrants (Bloomberg Law). And although there’s no date on the calendar, the anticipated overturning of Roe v. Wade would impact abortion and reproductive rights (NBC News).

All of these immediate decisions are only a glimpse of what may come from future cases. So conversations about expanding the court can’t end with this upcoming election, or this decade. Regardless of the outcome, we need to take a critical eye to our judiciary system and analyze what’s not just right historically or constitutionally, but ethically. If the government is designed to work for the life and liberty of its people, it must be realigned to suit its needs when its political leaders fail.

KEY TAKEAWAYS

Judge Amy Coney Barrett was confirmed to the Supreme Court Monday night
Her confirmation ensures a 6-3 conservative majority who will be voting on critical issues for communities of color, including healthcare, immigration and discrimination
Court-packing, or expanding the court, is a constitutional act of changing the number of court justices that's been implemented both federally and state-based

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Nicole Cardoza 10/15/20 Nicole Cardoza 10/15/20

Understand Judge Amy Coney Barrett's stance on racism.

This week, the Senate holds confirmation hearings for Judge Amy Coney Barrett, who was nominated as the next Supreme Court justice appointment. As you watch, be sure to listen for how her confirmation may impact how the U.S. responds to this racial reckoning for decades to come.

Happy Thursday! Today I'm analyzing the Senate confirmation hearings and parsing out Judge Amy Coney Barrett's position on racism. I'm quite (un)surprised by her thoughts on the judicial system's responsibility to racial equity – give me a read and let me know your thoughts.

I'm excited to announce that the Anti-Racism Daily Podcast is here! I'll be hosting conversations on the most impactful ways to take action around critical current events, and interviewing inspiring changemakers. Listen to the trailer on Apple Podcasts or Spotify.

You can help our work thrive by making a one-time or monthly contribution. Thank you to everyone that makes this newsletter possible.

Give on our website, PayPal or Venmo @nicoleacardoza
Subscribe monthly or annually on Patreon

Nicole

TAKE ACTION

Contact your senator and tell them there should be no vote on any Supreme Court nominee before January
Stay informed on the issues discussed during the confirmation hearings
Continue to recognize how racism affects the disproportionate impact of significant court decisions

GET EDUCATED

By Nicole Cardoza (she/her)

The most divisive aspect of Judge Amy Coney Barrett’s potential appointment is abortion. During the confirmation hearings, Judge Barrett has evaded giving a straightforward answer on how she will approach Roe v. Wade during her appointment (The Atlantic). But we do know that Trump vowed to appoint justices who'd vote to overturn it. Anti-abortion advocates are celebrating both him and Judge Barrett. And in her past work, Judge Barrett has cast votes opposing rulings that struck down abortion-related restrictions (Reuters).

Although abortion may feel like a separate issue when analyzing the significant factors at play in this election, it’s not. The right to abortion affects everyone but disproportionately impacts communities of color. We need to remember that race is a critical component of reproductive justice. In fact, because the abortion movement has historically been a white-led movement, it’s easy to dismiss how many people of color are impacted by these decisions. Read more in a previous newsletter >

A study in 2008 found that abortion rates for Black women are almost 5x that for white women. The abortion rate among Hispanic women is 2x that for white women. A more accurate statistic for understanding the likelihood of abortion is the number of unintended pregnancies, which is also disproportionately higher for women of color (Guttmacher). Much of this is attributed to difficulties communities of color may face in accessing high-quality contraceptive services, one of many health disparities that affect our maternal health and reproductive rights. Many states with a high population of communities of color have greatly restricted abortion access. Explore a state-by-state map via Planned Parenthood >

Another urgent issue on hand is the Affordable Care Act. The Supreme Court is currently set to review the act on November 10th, just a week after the election. Democrats believe that Republicans are rushing the nomination through so that Judge Barrett would be on the court to rule against it (NPR).

Ending the Affordable Care Act would impact millions of people and have devastating consequences amid an economic downturn and global pandemic. The 133 million Americans with pre-existing health conditions may be turned away from other forms of care or be forced to pay high premiums. An additional 9 million could lose access because of the loss of federal subsidies that make accessing it affordable. Twelve million more adults could lose Medicaid coverage. You can read a more comprehensive breakdown in the NYTimes.

These initiatives worked to decrease coverage disparities between white communities and communities of color. The difference between Black and white adult uninsured rates dropped by 4.1 percentage points, while the difference between Hispanic and white uninsured rates fell 9.4 points since the ACA went into effect. Also, Black adults living in states that expanded Medicaid report coverage rates and access to care measures as “good as” or “better” than what white adults in non-expansion states report (The Commonwealth Fund). Although the ACA is far from perfect, it’s unclear what the future will look like if it’s disbanded, particularly a week after an election.

When asked about race directly during the confirmation hearing, Judge Barrett stated that she thinks “it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country”. But she also said that she believes "making broader diagnoses about the problem" is up to lawmakers, not judges (NPR). But that doesn’t sit well with me. If you read our newsletter, you’ll note that major Supreme Court decisions influence systemic issues upholding racism and oppression in our society. We’ve outlined “Milliken v. Bradley” and its impact on school funding disparities. We discussed how the verdict of “Monroe v. Pape” and how the Supreme Court’s revision in 1982 defined qualified immunity. And we’ve analyzed how the ruling on “Shelby County v. Holder” makes it difficult for people to vote in this upcoming election.

This isn’t meant to downplay the historical significance of major laws written into effect that, too, have changed the course of racial equity. But the power of our judiciary system needs to be wielded alongside policy to ensure that laws are implemented and enforced.

Supporters of Judge Amy Coney Barrett will emphasize that Barrett cannot be racist because she has two adopted Black children from Haiti (Washington Post). But having Black children doesn’t mean that Judge Barrett will vote against racist policies. And, more broadly, having Black children – or being in proximity to any Black person – doesn’t mean that people still can’t have racist values, beliefs, or behaviors. Judge Barrett emphasized that she wept along with her children while watching the George Floyd video. But that does not seem to shift her views of the court’s responsibility court to take action (Politico). Remember that proximity to communities of color does not ensure their protection. Read more in our newsletter on playing the “friend card” and our follow-up Study Hall question on playing the “family card” >

Also, note how often people justify Judge Barrett’s empathy not by her voting history, but because she is a mother. Regardless of her children’s race, it’s far too common that women are valued by their contributions to family rather than their work ethic. As we continue to unpack the intersectionality of race, gender, and other identities, consider how voters’ depiction of Judge Barrett as a woman skews their perception of her work. In addition, consider how “being a good mother” is wielded as a defense for any racist rhetoric, which is often used to bypass harm inflicted by white women.

As the confirmation hearings continue to unfold, watch for more conversations on critical issues regarding racism, including immigration and the environment. But remember that racism, not race, causes the disparities in how these decisions impact communities of color. We deserve a judge that holds the judiciary system accountable for how racism will affect rulings on some of the most critical decisions in our future.

KEY TAKEAWAYS

The Supreme Court nominee Judge Amy Coney Barrett holds a generally conservative view, which can negatively impact communities of color
The most critical decisions Judge Amy Coney Barrett may make in her appointment need to be analyzed with the lens of how racism persists in the U.S.
The U.S. Justice system has greatly influenced racial equity throughout history – and will continue to do so
An individual's oroximity to Blackness – and other people of color – does not mean that person isn't racist

7/6/2020 | Abolish qualified immunity.

7/2/2020 | Remove police from our public schools.

8/7/2020 | Don't play the friend card.

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Nicole Cardoza 9/20/20 Nicole Cardoza 9/20/20

Make the justice system more diverse.

The death of Justice Ruth Bader Ginsberg is heart-wrenching. Her loss is likely to transform the upcoming election. Although our influence on the federal Supreme Court nomination is limited, there's a lot more we can do to promote judicial diversity throughout state and federal courts. Today we dive into the importance of representation and the true weight of this election.

Thank you for all your support! You can give one-time on our website, PayPal or Venmo (@nicoleacardoza), or subscribe for $5/mo on our Patreon.

– Nicole

TAKE ACTION

1. Vote this November for a President that is more likely to choose a diverse, liberal Supreme Court nominee. Hint: it’s not Trump.

2. Nominations for Supreme Court justices are confirmed by the United States Senate, which is currently a Republican majority. It takes four seats to flip the Senate to a Democratic majority, which, based on current news, is more likely to confirm a liberal judge. Choose a Senate state battleground and support a candidate more likely to confirm a diverse, liberal Supreme Court nominee (Ballotpedia). Donate, phone bank, or volunteer if you’re in-state.

3. Support the MCCA LMJ Scholarship, which grants scholarships of $10,000 to students for their first year of law school to increase the diversity pipeline. Learn more and donate.

GET EDUCATED

Ruth Bader Ginsburg, the second woman to serve on the Supreme Court known for her advocacy for women’s rights, passed away Friday from complications from metastatic pancreatic cancer. She was 87 (NYTimes).

And as the nation mourns the loss of this trailblazing individual, the Trump administration is wasting no time to appoint a replacement. Trump released his shortlist of potential judges a couple of weeks ago, many of whom are men, nearly all are white, and all represent conservative views and values (NYTimes). If the administration does move forward, it will ensure that our Supreme Court has a conservative majority for years to come. Six of the nine seats would be held by Republican appointees (NYTimes). Justice Ginsburg was keenly aware of this, and days before her death, she dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed” (NPR).

Our nation is in the midst of an upheaval, one that is likely to transform the fabric of our democracy. That will be cemented through the decisions of our federal judicial system, particularly our federal Supreme Court. The added weight of choosing a Supreme Court nominee is likely to upend this election. Read more about the most significant Supreme Court cases in our history, many of which defined the rights and opportunities for marginalized individuals (Business Insider).

Although our Supreme Court justices hold significant power in the federal system, we can also do more to build a more diverse pipeline and increase representation across the federal justice system. The Supreme Court makes less than 100 decisions on cases each year, and although they are critical, many more are decided by the 94 federal district courts, and the 13 circuit courts that act as the first level of appeal (U.S. Department of Justice). It's critical we increase representation here, too, as we try to chart a more equitable future for us all.

Let’s start with the facts. As of 2019, more than 73% of sitting federal judges are men. 80% identify as white. Of the 20% that identify as people of color, 10% are African American, 6% are Hispanic/Latinx representation, and 2.6% are Asian. And there are only two American Indian judges sitting on the federal bench, making up just 0.1 percent of the federal judiciary compared with 0.7 percent of the U.S. population. In addition, less than 1% of judges publicly identify as LGBTQ+ (Center for American Progress). The first judge of color on the Supreme Court, Justice Thurgood Marshall, was appointed in 1967, 191 years after the founding of America (Washington Post).

The Minority Corporate Counsel Association (MCCA) has an active list of judges based on race/ethnicity and gender in each district, and a list of the diversity of judges appointed by each president through history (MCCA). The authors of the Center for American Progress study note that there’s no publicly available data on judges with a disability, which is “problematic and deserves more attention” (Center for American Progress).

Data for state courts is also disappointing. Only 15% of state supreme court seats nationwide are “held by individuals who are Black, Asian, Latino, or Native American,” and women hold 36% of state supreme court seats. This means that 24 states currently have an all-white supreme court bench, including eight states in which people of color are at least 25% of the state’s population (Brennan Center).

A few former presidents – both Democratic and Republican – have committed to diversifying the federal judiciary, including President Carter and President Clinton. But President Obama made the most significant strides. Out of his 324 judicial nominees during his presidency, over 60% were people of color, women, and sexual or gender minorities. He also nominated and confirmed more women than any other president in history (Center for American Progress). These efforts have regressed during the current administration; President Trump’s judicial picks, who have been 91% white and 81% male, are “the least racially and ethnically diverse of any presidential administration over the past 30 years” (Center for American Progress).

This might be considered common sense, but it’s important to note: the diversity of a federal judiciary increases the likelihood that decisions will represent the needs of marginalized communities. Judge Tashima, who was appointed in 1996, lived in an internment camp as a child during World War II. Read more about internment camps and the use of the word “internment” in a previous newsletter. He spoke about how that experience influenced his decision-making. The data proves it: he voted for more equal protection opinions since being appointed compared to his Ninth Circuit colleagues (California Lawyers Association).

“Because we are all creatures of our past, I have no doubt that my life experiences, including the evacuation and internment, have shaped the way I view my job as a federal judge and the skepticism that I sometimes bring to the representations and motives of the other branches of government”.

Atsushi Wallace Tashima, Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, via California Lawyers Association.

Furthermore, studies conducted on federal appellate courts have found that one female judge’s presence will increase the likelihood that male judges will make decisions for cases involving sexual harassment or discrimination will be in favor of the defendant. It also found that having at least one Black judge increases the likelihood that non-Black judges will support plaintiffs claiming violations of both the Voting Rights Act and affirmative action cases (Princeton).

A more diverse court would also sway public trust, which is increasingly important as younger voters feel disillusioned by our political system. At the 1999 National Conference on Public Trust and Confidence in the Justice System, three pressing issues were identified: unequal treatment in the justice system, high cost of access to the justice system, and lack of public understanding (Perceptions of Fairness and Diversity in the Florida Courts). A 2014 Pew Research Center survey found that 68% of Black people feel that the courts mistreat Black people, compared to 27% of white people, and 40% of people who identify as Hispanic (Pew Research Center).

“People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”
Elena Kagan, Associate Justice of the Supreme Court of the United States, via NYTimes.

Part of creating a more diverse federal judiciary is diversifying the pipeline, which means dismantling the historical racism and discrimination embedded in our education system. It also means recruiting and retaining candidates in associate positions. Despite progress from years prior, recent data indicates that outcomes have stagnated, and in some cases, regressed (NYC Bar). A particular concern is attrition. In 2016, 36.2% of first-year associates represented marginalized communities, but by the eighth year, that percentage dropped to 20.5%, a significantly higher attrition rate than white associates during the same period (NYC Bar). And public criticism of the federal judiciary system can dissuade talented candidates from pursuing future opportunities.

But progress isn't completely unfounded. Consider the latest news from Colorado. In the past year and a half, Colorado’s Democratic governor has appointed more Black women to the statewide bench than his 42 predecessors combined (Essence). There are currently 8 Black women judges serving concurrently on Colorado’s statewide judiciary. In the world of business, the MCCA reports that the number of female general counsels and general counsels of color at Fortune 1000 companies is the highest recorded in the past 15 years (law.com).

By January 2021, over 200 federal will be eligible for senior status, which means new candidates can take their place. And of those 200 judges, more than half are white males (Center for American Progress). Despite our outrage over the federal Supreme Court composition, deciding who to nominate is up to the president. It’s up to us to use our voices to influence decisions on the federal and state level and invest in diverse candidates to support qualified candidates.

Key Takeaways

The death of Justice Ruth Bader Ginsberg has made the appointment of a new Supreme Court justice a critical component of the upcoming election
Efforts to increase representation in the federal judiciary have been dismantled by the Trump administration
Diversity of the federal judiciary influences public perception of the political system
Increasing the diversity pipeline can help ensure more diverse candidates are nominated and confirmed
We must vote for a president that will nominate a diverse Supreme Court justice candidate, and ensure a Senate that's more likely to confirm one