The Roberts Court has erected nearly insurmountable burdens of proof under Title VII and the Fourteenth Amendment.

I have recently retired from the United States Supreme Court. It’s true that as a justice, I had life tenure, but I wanted time to reflect on the cases I had decided during my long career on the bench. And, so I am sorting through old notes, correspondence, drafts, and opinions to make sense of my jurisprudential legacy, such as it is. The process has made me feel a bit like Jorge Luis Borges in “The Other,” when as an old man, he unexpectedly meets a younger version of himself. The elder Borges realizes that the distance between him and his youthful doppelganger is not just chronological but psychological and philosophical – and, more importantly, utterly unbridgeable. Jorge Luis Borges, The Book of Sand 11 (1977). As I sift through my records, I have similar encounters with myself as a fledgling jurist. I was confident then that I had done everything possible to achieve just results in every case. Now, I look back and realize that I made some irretrievable mistakes, though all in good faith. They are oversights that I am able to appreciate only in hindsight, though that does not mean I feel any less regret.

I dissent today from the majority’s decision in these cases because the detestable segregation in the public schools that the majority finds unconstitutional is a manifestation of the evil of racism the depths and pervasiveness of which this Court fails even to acknowledge, much less address and attempt to correct.

Submitted Oct. 12, 1927.Decided Nov. 21, 1927.

Chief Justice REGINALD OH delivered the opinion of the Court.

Mr. Chief Justice STONE1 delivered the opinion of the Court.

The petitioner, Fred Korematsu, was born in Alameda County, California, and is of Japanese ancestry. He is an American citizen by birth. United States v. Wong Kim Ark, 169 U.S. 649 (1889). That his parents were born in Japan and, with the commencement of war, became formally classified as enemy aliens is of no moment in this case.2 No question has been raised as to petitioner’s loyalty to the United States.

Petitioner was convicted in a federal district court for remaining in San Leandro, California, a “military area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area.

Argued December 4, 2006.Decided June 28, 2007.

Justice Charles LAWRENCE delivered the opinion of the Court.1

Plaintiffs Parents Involved in Community Schools (“Plaintiffs”) brought suit against Seattle School District No. 1 (“Defendant”); challenging an assignment plan that relied in part on racial “tiebreakers” to assign slots in oversubscribed high schools. In a separate action, McFarland v. Jefferson County Public Schools, parent and student plaintiffs challenged a school district’s race-conscious student assignment plan. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed.

These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that state.

Argued January 15, 1974.Decided June 24, 1974.

Justice NELSON delivered the opinion of the Court.1

This case addresses whether it is constitutional to deny the right to vote based on a citizen’s past criminal conviction. For the reasons stated below, we hold that California’s composite legal scheme that denies voting rights to persons who have fully discharged their sentences of incarceration or parole violates both the letter and the spirit of the Fourteenth Amendment.

Argued April 10, 1967.Decided June 12, 1967.

Davis, J. delivered the opinion of the Court.*

Appellants challenge a statutory scheme adopted by the Commonwealth of Virginia to prevent marriages between persons whom the Commonwealth assigns to different racial classifications. We conclude that the scheme cannot stand, for it violates principles expressed in our founding documents and definitively embraced when the Nation was reconstructed by constitutional amendment after Confederate secession and Civil War. More specifically, such a statute fails to respect the dignity and autonomy of free people, and it violates our obligation of equal protection and respect for every member of our society.

Argued March 1, 1976.Decided June 7, 1976.

Ms. Justice CRENSHAW delivered the opinion of the Court.1

Since Africans were brought to North America to serve whites four centuries ago, nothing has been more closely associated with their status as enslavable people than the power granted to policing agents to surveil, control, capture, and punish them. And during slavery and since, nothing has been used to justify the brutal coercion of those deemed enslavable more than the idea that their subjugation was due to inherent deficiencies purportedly tied to race: physical, moral, temperamental, and intellectual. Even science has been manipulated to advance the false proposition that the purported inferiority of African people is objectively observable, quantifiable, and inalterable, a transhistorical characteristic of an essentialized Blackness thought to exist entirely apart from the specific contours of racial subjugation.

Argued April 22, 1927.Decided May 2, 1927.

Ms. Justice ROBERTS delivered the opinion of the Court.1

This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia, affirming a judgment of the Circuit Court of Amherst County, by which the defendant in error, the superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her sterile. 143 Va. 310. The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws.

Argued December 14, 1970.Decided June 14, 1971.

Justice BODDIE delivered the opinion of the Court.1

This case arises out of Jackson, Mississippi’s decision to close its public swimming pools rather than integrate them. At issue is whether these closures violate the Thirteenth and Fourteenth Amendments, thereby requiring an order enjoining the pools to be reopened. City officials deny that the closures constitute a badge of slavery under the Thirteenth Amendment. They similarly insist that the closures do not violate equal protection because they apply equally to blacks and to whites such that neither group has the benefit of using any municipal pools.

Argued October 12, 1977.Decided June 28, 1978.

Mr. Justice HARRIS announced the judgment of the Court.1

This case presents a challenge by the Respondent, Allan Bakke, to the Task Force Program of the Petitioner, the Medical School of the University of California at Davis (Davis). The Task Force Program was designed to open the admissions process to students of color who throughout its history the Medical School had largely excluded. The Superior Court of California, California’s trial court, sustained Bakke’s challenge, holding that Davis’ program had violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. It enjoined Davis from considering Bakke’s race or the race of any other applicant.

Argued April 20, 1993.Decided June 28, 1993.

Justices Guy-Uriel CHARLES and Luis FUENTES-ROHWER delivered the opinion of the Court.

Chapter 6 exposes the Supreme Court’s acceptance of inequality in educational opportunity as a result of its opinion in San Antonio Independent School District v. Rodriguez. The chapter begins with a detailed examination of Justice Powell’s majority opinion in Rodriguez, which rejected arguments for protecting education as a fundamental right and applying the language of the Equal Protection Clause to treat impoverished Americans as a discrete group. Against this framework, the chapter juxtaposes Justice Marshall’s comprehensive dissent. Later, the chapter examines Plyler, which prohibits the absolute denial of educational access to a discrete group that is covered by the Equal Protection Clause. In addition, the chapter surveys the widespread and growing inequities in funding across school districts - inequities exacerbated by the 2001 No Child Left Behind Act. It also recounts a number of decisions at the state level in which advocates convinced state courts to recognize education as a fundamental right under the constitution of their state, and summarizes the most promising legal routes available to advocates for educational equity.

This chapter considers when the government’s speech violates the Equal Protection Clause. It starts with an illustrative sketch of the government’s wide-ranging speech about equality that features heroes, villains, and some that are hard to characterize. It then explores three different approaches to the Equal Protection Clause problems sometimes triggered by the government’s speech, approaches that consider the consequences of, and the motivations underlying, the government’s speech. First, does the government’s speech disadvantage its targets’ opportunities based on race (or other protected characteristic), and does the Clause bar the government from causing that disadvantage? Next, does the government’s speech inflict expressive harm by communicating hostility to or disrespect for its targets based on race (or other protected characteristic), and does the Clause bar the government from inflicting that harm? Finally, is the government’s speech motivated by animus, and does the Clause bar the government from speaking for that reason? The chapter closes by applying these approaches to several problems, including governments’ display of the Confederate flag.