Over the past few weeks, the Supreme Court has shocked many observers and reaffirmed several civil protection measures, despite widespread fears that the conservative majority of the court would go the other way.
The court ruled that discrimination against gay or transgender people is considered “gender discrimination”, which is excluded by the 1964 Civil Rights Act. It suppressed Louisiana's attempt to restrict access to abortion by imposing burdensome regulations on reproductive health providers. And for now, it has retained the child arrival deferral campaign, the immigration program that protects undocumented young people from deportation.
These decisions will protect millions of Americans and their communities from the threat of hostile government policies. And yet the truth is that these decisions are a delay and not a victory for civil rights.
The Roberts Court itself continues to reverse civil rights through other means: its religious freedom decisions will allow some employers to avoid providing contraceptive protection in employee health plans. The DACA judgment also leaves open the possibility of dismantling protective measures for people who were brought illegally to this country as children.
The task of ensuring a just, inclusive democracy now requires going beyond litigation and court decisions. Litigation – depending on a federal judiciary that is increasingly made up of Trump-appointed judges and is bound by decades-old laws – will simply not be enough to ensure that civil rights are protected for those who need them most. If one focuses only on individual cases of discrimination, the job guidelines and power structures that maintain systemic discrimination, especially of the black and brown communities, are often preserved.
Another route is possible. The nationwide protests and Black Lives Matter have forced Americans to face the need to dismantle systematic forms of racial, gender, and economic inequalities that shape our economy and society. If we want to take these demands seriously, we have to do more than turn to Chief Justice John G. Roberts Jr. or other judges to save us.
What does that mean?
First, this means broadening our conventional understanding of “civil rights” to include more than just legal claims that victims can bring to justice. For example, we can reduce discrimination in the workplace by giving workers more power and the ability to distance themselves from bad employers by creating a strong universal safety net with living wages and universal health care. This means expanding workers' right to negotiate better treatment through stronger union initiatives and balancing the power of short-term, profit-making investors by including workers on company boards.
Second, we need to extend our approach to enforcing civil rights beyond individual cases. The Civil Rights Act is an example of this approach.
Part of this law authorizes the federal authorities to make compliance with civil rights standards a prerequisite for receiving federal funds. Such provisions have also been made broad so that regulators can tackle patterns of discrimination – without having to demonstrate targeted discrimination by decision-makers, which is a high benchmark. So if a city's housing and development plans damage the color communities disproportionately, this “different impact” could be the basis of a federal measure that forces the local government to choose a better alternative.
Third, enforcing such laws requires powerful and vigorous regulators. For example, during the civil rights movement, attempts to segregate hospitals were successful because bureaucrats from the Department of Health, Education, and Social Welfare used their powers to oblige hospitals to receive Medicare payments to desegregate them.
Where these laws and regulatory instruments have been weakened, we have seen protection for racial justice weaken. The Trump administration has discontinued several federal measures to enforce different impacts that allow private companies and local governments to continue discriminatory practices. In the meantime, the judiciary has for years rejected the authority for agencies that want to eliminate systemic racial differences, weakening it in the context of employment, for example.
Adopting a structural approach to safeguarding civil rights that relies more on legislators and regulators as enforcers of rights would be a sharp departure from a model where courts and litigation come first.
More than 50 years ago, the civil rights movement pursued an expansive vision of justice. The Black Life Movement recently released its vision for a “modern civil rights law”, the BREATHE Act, which outlines many of the structural changes required to end police violence and dismantle racist violence systems, as well as measures to combat racist violence differences Employment and housing.
If progressives are successful in the November elections, there may be an opportunity to advance a new civil rights movement that continues the legacy of the 1960s. Everything else will expose Americans to a restricted, procedural model of rights – one that depends too much on a capricious and skeptical judiciary.
K. Sabeel Rahman is the president of Demos, a think tank dedicated to promoting racial justice and democracy. He is also an associate professor of law at Brooklyn Law School.