Columbia Journal of Race and Law

THE CLAIM AND THE RELIEF: REVEALING MISCONCEPTIONS AND MISSTEPS IN THE U.S. SUPREME COURT’S JURISPRUDENCE FOR §1983 ACTIONS AND BLACK LIVES MATTER

Simona Grossi — Fri, 26 Jul 2024 00:00:00 +0000

This article explores the persistent challenges in addressing police brutality through civil rights litigation, focusing on the limitations imposed by federal jurisdiction and justiciability doctrines post-Lyons. It argues that the Supreme Court's approach, which conflates jurisdictional inquiries with procedural or remedial ones, has significantly hindered access to justice for plaintiffs seeking to vindicate their constitutional rights under §1983. By examining the foundational jurisdictional and procedural principles at stake, the article reveals the Court's missteps and suggests ways to disentangle these concepts, aiming to restore §1983's essential role in defending constitutional rights and ensuring that victims of police misconduct can obtain full redress in federal courts.

Bailing Out the Protester

Alireza Nourani-Dargiri — Sat, 10 Aug 2024 00:00:00 +0000

The United States cash bail system unconstitutionally hinders protest rights enshrined in the First Amendment. Protesting on controversial issues, while protected activity, often risks arrests and other interactions with police. Unfortunately, studies show that protesters of color are arrested at higher rates than white protesters.

Cash bail, in turn, increases the cost associated with the arrests related to protests, further disincentivizing protesters from engaging in lawful activity. Although the overwhelming majority of these protests and demonstrations are peaceful, and many of the charges in these arrests are eventually dropped, arrested protesters are still required to put up hundreds––sometimes even thousands––of dollars to be released pretrial. If they cannot, they must remain in jail until their trial, until the charges are dropped, or until they are able to raise enough money to be released. This pretrial detention, even if it only lasts a few days, has significant consequences. Furthermore, these consequences are not shared evenly: the cash bail system disparately impacts people of color, who are imposed bail at higher rates and at higher amounts, meaning they will also experience negative consequences at a disproportionate rate.

Because states are criminalizing more conduct, elevating charges from misdemeanors to felonies, and continuing to impose bail amounts on protesters, the intersection between cash bail and protests is unavoidable. In turn, many people could be afraid to protest because they do not have enough money to afford their bail if they are arrested at the protest, and because they cannot afford the negative consequences of awaiting their trial in jail.

This Article discusses how cash bail dissuades First Amendment expression by compounding existing consequences created by government action that also curtails lawful protests. Furthermore, the disparate rates at which protesters of color are arrested and later imposed bail raises an equal protection concern, deterring people of color from expressing constitutional rights. Removing cash bail in limited circumstances associated with otherwise lawful protesting, measured reform may help alleviate some of the disparate risks involved with protected activity. While eliminating bail altogether is the ultimate goal, this measured reform would be an incremental step towards broader change, building public support for holistic reform.

Defanging Diversity

Daniel Kees — Thu, 05 Sep 2024 00:00:00 +0000

They don’t want to realize that there is not one step, morally or actually, between Birmingham and Los Angeles.

- James Baldwin, I Am Not Your Negro (2017)

This article explores the jurisprudential underpinnings of the so-called “diversity rationale” that until recently had been considered a powerful vehicle for fostering racial diversity on elite college campuses. As the national debate around diversity, equity, and inclusion measures—both their legitimacy and practice—will only intensify in the current sociopolitical climate, this writing attempts to provide a chronology of how the nation’s High Court has shaped the contours of that discourse, arguing that the Court’s juridical trepidation in this area of the law led to an unworkable framework that was doomed from inception. This article further examines the rapidly changing norms of race and identity—including the inherent tensions and complexities that such concepts engender before concluding with a recommendation for how to achieve the supposed aims of the affirmative action regime in American society.

THE TRAGEDY OF FELIX FRANKFURTER: FROM CIVIL LIBERTIES AND CIVIL RIGHTS ACTIVIST TO REACTIONARY JUSTICE

Paul Finkelman — Mon, 07 Oct 2024 00:00:00 +0000

This article reconsiders the life and record of Supreme Court Justice Felix Frankfurter. Frankfurter was smart, hardworking, and talented, serving as a great activist lawyer and important law professor in his early career. When nominated to the court, there were high hopes he would follow Holmes and Brandeis in leading a progressive Court that would protect civil liberties and minority rights. However, it was not to be. On the Court Frankfurter became increasingly conservative and ultimately reactionary. In his opinions, he upheld persecution and discrimination of religious and racial minorities, occasionally hindered racial justice and civil liberties efforts, and opposed due process in criminal trials and fairness in elections. Arrogant and dismissive, he constantly fought with his brethren, alienating almost all of them. In the end Frankfurter was far too often on the wrong side of history, liberty and the law, and even legal ethics. The tragedy of Frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. He could have been a great justice. Sadly, he was not.