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Will Congress Accept Ruth Bader Ginsburg's Challenge?

AFP/Getty Images

In an interview with MSNBC’s Irin Carmon that aired Monday night, Supreme Court Justice Ruth Bader Ginsburg warned that the country is still far from undoing generations of discrimination against minorities. “People who think you could wave a magic wand and the legacy of the past will be over are blind,” Ginsburg told Carmon, who in her question quoted from a dissent the justice wrote in a 2003 case that struck down the affirmative action plan of the University of Michigan.

Ginsburg did not specify who the “people” were, but the Supreme Court, in reading the Constitution as a “color-blind” document, has turned cases like the landmark Brown v. Board of Education on their head to undo important attempts to achieve equality for blacks and Latinos—like in 2007, when it ruled that a plan in Seattle aimed at integrating schools violated the Equal Protection Clause of the Constitution. In that case, Chief Justice John Roberts famously wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But rather than blaming the Roberts Court for these decisions, Ginsburg threw it right back at Congress for its inability to restore some of the protections that have gone away in recent years. “At the moment, our Congress is not functioning very well,” Ginsburg said. “I mean, for example, the Voting Rights Act was renewed by overwhelming majorities on both sides of the aisle. But the current Congress is not equipped really to do anything.”

That was a reference to Shelby County v. Holder, a 2013 case that gutted an important provision of the Voting Rights Act of 1965, one of the crowning achievements of the Civil Rights Movement and the locus of the Academy Award–nominated film Selma. But the law was badly weakened by the decision—with Roberts again writing for the majority of the court, opposite Ginsburg’s dissent—leaving the Department of Justice and civil-rights groups to try lesser methods to challenge discriminatory electoral measures, such as voter I.D. laws. Two petitions now pending at the Supreme Court—one from Wisconsin and the other from North Carolina—could soon resolve whether the Voting Rights Act has any teeth left. In the interim, House members last week introduced a bipartisan bill that could restore voting protections, though similar initiatives have failed in the past.

Congress, Ginsburg noted, wasn’t always known for its inaction on civil rights. She looked back to the time when she was nominated to the court, in 1993, as a period where lawmakers were willing to reverse some of the court’s “restrictive interpretations” of Civil Rights–era legislation, like Title VII of the Civil Rights Act of 1964. That law, which bars various forms of employment discrimination, was front and center in one of Ginsburg’s most notable dissents—in a 2007 case involving a female supervisor who was paid significantly less than her male counterparts. The Supreme Court ruled against the woman, but Congress later heeded Ginsburg’s challenge and corrected the court’s “cramped interpretation” of the statute to match hers.

Still, other forms of discrimination remain, and Ginsburg sees room for improvement: “We still have many neighborhoods that are racially identified. We still have many schools that even though the days of state-enforced segregation are gone, segregation because of geographical boundaries remains.” She pointed out more modern forms of “bias,” like lending and consumer discrimination, where studies have shown that blacks and Latinos are likely to be hit with less favorable treatment than similarly situated whites. “So again, we’ve come a long way from the days where there was state enforced segregation. But we still have a way to go,” she said.

It is precisely these more sophisticated forms of discrimination that the Supreme Court will be tackling when it rules in a high-stakes case testing the vitality of another civil-rights statute, the 1968 Fair Housing Act. Advocates contend that Congress already amended the law in 1988 to include more subtle forms of housing discrimination—and 11 federal circuits agree—but the court is not bound by any of that. It could deal a blow to the statute if it wants. And with the current Congress, there’s no guarantee of a fix. “Someday, we will go back to having the kind of legislature that we should, where members, whatever party they belong to, want to make the thing work and cooperate with each other to see that that will happen,” Ginsburg said.

This article has been updated. The MSNBC interview aired on Monday, but took place on Friday.