In fact, widespread acceptance of bias is precisely the context in which the Supreme Court should feel most compelled to act to protect the ”discrete and insular minorities,” as set out by Justice Harlan F. Stone in his famous ”footnote 4” in United States v. Carolene Products, in 1938. Public support of bias should compel the Supreme Court’s ”searching scrutiny” of legislation that infringes on individual freedom. It’s likely that if a poll had been conducted in 1953, most Americans would have supported the maintenance of racially segregated education a year before Brown v. Board of Education, that most would have supported the legality of racially restrictive housing covenants in 1947, a year before the Supreme Court’s decision to strike them down in Shelley v. Kraemer, or that they would have been against the Montgomery bus boycott in 1955, or would have advocated striking down affirmative action in higher education in 2002, a year before the court’s decision in Grutter v. Bollinger.
The court’s special role is to counter the ”tyranny of the majority.” The insistence of the framers that Supreme Court justices receive lifetime tenure and a salary that cannot be diminished by Congress was constitutionally designed to ensure that the court would have the independence to withstand the strong winds of public opinion that often blow in the direction of injustice.
Challenges to the Arizona law have already been filed and are likely to make their way up to the Supreme Court in the next year or two. Given the precarious balance of conservatives and centrists on the court–a balance unlikely to be changed in the short run by the addition of Supreme Court nominee Elena Kagan–it’s anybody’s guess what will happen. The Arizona legislature’s hasty adoption of modified language designed to blunt public reaction to the most egregious aspects of the bill, may also make it harder to make the case that the law is on its face unconstitutional. But the unfinished business of Brown v. City of Oneonta will continue to come before the Supreme Court until the justices once and for all address the unconstitutionality of racial profiling, and uphold the right of people of color to walk boldly down the streets of New York, Oneonta and Phoenix.
Sherrilyn Ifill writes about the law for The Root. She teaches at the University of Maryland School of Law.