Authored by: Anirudh Tyagi


The death of a young man, named George Floyd, has instigated a violent and firm repudiation of discriminatory stance towards the Blacks in America. The movement has cajoled the individuals and institutions around the globe to revisit and reconsider the unholy fissures unsuitable to a modern civilized world. In purview of the same, the author tries to impugn the America’s, if not the world’s, most trusted institution-The Federal Supreme Court. This constructive analysis tries to show how the American Supreme Court had been capricious on the question of the rights of Negroes and how the decimating prospection of the former made tough, the toughest. This retrospect of history is of huge importance to understand the present despondence and, most importantly- The Black Lives Matter.

The denial of Citizenship to Blacks

The notoriety of racism, for a length, was first raised and discussed in the Dred Scott v. Stanford (“Dred”).  Being respected for the first use of “due process”, the Dred arguably is the most infamous decision in the U.S legal history and was one of the major causes behind the bloody Civil War. Decided in 1856, the question before the bench was whether the Negroes in America have legal right to sue their White “masters”. All nine judges delivered different opinions; seven of whom, with varying qualms, denied any such right to Negroes. Chief Justice Taney, crudely abridging the majority verdict, asked if the founding fathers regarded Blacks as equal to Whites. The answer, unsurprisingly, was a no. They were regarded by the founding fathers as a subordinate race, said Taney, which is subjugated by a dominant race. They, according to the court, do not qualify the definition of “citizens” in the constitution and therefore, do not enjoy any legal or constitutional right. The decision attracted heavy criticism on its misinterpretation of the Declaration of Independence and the Constitution. Slavery which was a state or regional issue was ultimately sanctioned by the court to become a “national right” by the Supreme Court. With the denial of civil rights, the Dred Scott decision became a point of illumination casting a shadow on Black and White relations for more than a century.

Civil War and an (Un)Sanctimonious Judiciary

The thirteenth amendment, passed in aftermath of Civil War, prohibited slavery in the U.S. The fourteenth and fifteenth amendment granted citizenship and equal political rights to Blacks, respectively. The amendments however empowered the Blacks to protect their Civil rights, the Whites, concurred by the SC, were not likely to grant equality. In the Slaughterhouse cases of 1873, SC, by a ratio of five to four, contended that the fourteenth amendment only pertains to the rights associated with the federal citizenship and not the state citizenship. In other words, the court asserted that the rights that can be “enforced” at the national level are to be “begged” in individual states. This etiolation was furthered in the U.S v Cruikshank, where it was noted that the Bill of rights did not apply to the private entities, and Civil rights cases. In the latter, which was a consolidation of five similar cases, the government contended before the court that the thirteenth amendment not only abolished slavery but also conferred equal rights of the citizenry on them.  The SC didn’t relate to the argument and with a majority of eight, held that the “It is state action of a particular character that is prohibited” and the thirteenth amendment “did not prohibit private racial discrimination”. The case had undoubtedly resurrected and spurred the Jim Crow system, hence legalizing open discrimination against Blacks in the public. After a decade in 1892, Plessey v. Ferguson (“Plessey”) filled the vacuum and propounded the doctrine of “separate but equal”. The court upheld the laws providing separate cars, buses, and taxies to the “coloured” and asseverated that the fourteenth amendment applied only to political rights such as voting and not to social rights (like sitting in a taxi!). Justice John Marshall’s in his famous dissent argued that “the arbitrary separation of citizens based on race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution”.

The Modern United States: A Silver Lining?

Plessey as a precedent had subdued racial equality in the U.S. for around half-a-century. In the twentieth century, after World War I and a glut of immigration of Blacks in North America, Roosevelt’s growing popularity commenced a change of wind towards democrats. The electoral support of Blacks became crucial to win the White House. The courts were not untouched by the changing milieu; the SC after the mid-1930s considerably shifted its inclination from economic to individual rights. The first such breakthrough was Korematsu v. the U.S.(1944) where the SC held that any restriction on civil rights should be testified with “rigid scrutiny”  by the courts. Although it did not find the curtailment of civil rights unconstitutional, it made them subjected to “rigid scrutiny”.  The trend was further encouraged in Smith v. Allwright (in 1941) where the court found a political party’s primary violative of fourteenth and fifteenth amendments. The exclusion of black from the electoral rolls was held unconstitutional.  The impetus eventually motivated the SC to strike down the “separate but equal” theory wrt. educational institutions.

The Apocalypse: A Hard Earned Victory

The Brown v. Board of Education of Topeka, 1954 (“Brown”) bludgeoned the decades-old eccentricity when SC, overruling its judgment in Plassey, unanimously held the racial segregation in public schools violative of the Fourteenth amendment. It noted that the fractionalization of African-American students solely on the grounds of race generates in them an inferiority complex which adversely affects their academics as well as very conscience and thus is “inherently unequal”. The judgment inspired the American Civil rights movement in the late 50s.

Brown was undoubtedly the biggest shot for Negroes, but the racial segregation in private institutions was still a challenge as all precedents were repelling to Blacks. It was already laid down in the Civil rights case that fourteenth and fifteenth amendment is only applicable to State. Federal Court was unlikely to change its position and therefore Congress stepped in and enacted The Civil Rights Act of 1964 which abolished the “segregation in public places and banned employment discrimination based on race, color, religion, sex or national origin”. The act was upheld by the SC in the Heart of Atlanta v. U.S.  The profound implications of Brown were to be seen illuminating in Griggs v. Duke Power Company which articulated the “disparate impact” doctrine which proscribed the employers to use “arbitrary tests” while awarding jobs. In other words, a test for IQ or literacy would be considered arbitrary and discriminatory in a job where there is no need to have a decent intelligence level.

Political Persecution: The Digression by Supreme Court

The Republican majority court had deescalated this process in the 70s and 80s. Two of its consecutive decisions denied (also see) any constitutional obligation to abate the racial segregation in schools. A significant turn was noticed in Wards Cove Packing Company v. Atonio, where the “disparate impact theory” of Griggs was swirled in a way that the burden of proving the arbitrary criterion was shifted on the employee rather than employer as laid down in the Griggs. The decision made it more difficult for the litigants to prove discrimination.

One interesting instance engendered in the University of Michigan Cases (2004) where the court held that the “affirmative action” by a law school on a racial basis is constitutional but the same is unconstitutional for other undergraduate programs in the university. This decision was overruled by SC in Schuette v. Coalition to Defend Affirmative Action (2014).

And the Fight Continues….

The blood and fire we see today on the roads persuade us to know, criticize and learn from the legal fight fought by Blacks for centuries. Judges like Sonia Sotomayor and Thomas Clearance have consistently questioned and condemned the “qualified immunity jurisprudence” and “biased legal stand” towards the Blacks.

The History discussed here shows that the splendid litigation for centuries has gained Blacks a handful of rights which are otiose without adequate implementation. The U.S., at this juncture, cannot afford to adopt the same stance as adopted in Dred or Plessey; what it needs is a reasonable extension of the Brown. Both politically and ethically, the death of George Floyd is a blot on the executive and judiciary which both together, or independently, try to wash with similar prudence adopted during the mid-twentieth century. It is high time for the Federal court to intervene and demarcate the boundaries and set a precedent for decades and centuries to come.


The author is an undergraduate student at Dr. Ram Manohar Lohiya National Law University, Lucknow.


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