Supreme Court Opinions Don’t Have to Be the End of the Fight for Justice

The Supreme Court doesn't have the last word; the people do. How attorneys pushed back on the flawed 1987 McCleskey decision.

As another season of last-minute U.S. Supreme Court opinions are handed down, Americans are faced with a perennial question: how much compliance is obligatory and how much room is there to disagree?

It’s critical to keep in mind that the Supreme Court never has the last word, the people do. And thanks to structural concepts like federalism, differences of opinion on matters of fundamental importance such as equality are not only encouraged but essential to popular self-government. One thing is certain: jurisdictions can be more committed to equality than the justices themselves, a valuable fact to remember as the court’s priorities and ideological orientation are increasingly out of step with those of many citizens.

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Consider one of the bleaker moments in court history: the 1987 case of McCleskey v. Kemp. In the early 1980s, a study revealed wide racial disparities in Georgia’s administration of the death penalty—including that people charged with killing white people were 4.3 times more likely to receive a death sentence than those charged with killing Black people. Lawyers introduced this evidence in the case of Warren McCleskey, a Black man convicted of killing a white police officer, to try to persuade the Justices that Georgia was denying Black citizens equal protection under the law.

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Instead, the Justices ruled 5-4 against McCleskey, a ruling that tried to insulate the criminal justice system nationwide from structural inequality lawsuits. To most observers, this looked like a resounding defeat for the cause of racial justice. In fact, Justice Lewis Powell told his colleagues privately that they had to find a way to avoid “statistical jurisprudence” that encouraged others to cast doubt on other aspects of the justice system—causing Justice William Brennan to accuse his colleagues of exhibiting “fear of too much justice.” Thus, despite the study demonstrating disturbing racial disparities in the administration of the death penalty, the court ruled that additional evidence of bias was needed to set aside a person’s conviction. McCleskey couldn’t satisfy this high standard and was ultimately executed.

Justice Powell protected the prerogative of prosecutors because he believed that racial disparities were inevitable in any system that entailed discretion. In the wake of McCleskey, advocates could have acquiesced to the court’s exceedingly narrow concept of equality, one that refused to see structural inequality, but recognized only isolated acts of individual wrongdoing. Instead, realizing the Supreme Court was not going to protect their clients from exposure to unequal justice, some advocates doubled down on a more robust notion of racial equality. They ramped up their efforts to document structural inequality by demanding access to prosecutor’s files and shamed prosecutors and judges for eliminating people of color from jury pools.

The Southern Center for Human Rights was at the center of this next stage of the struggle for racial justice. Bryan Stevenson, who later founded Equal Justice Initiative, was then a young staff attorney at the Southern Center. Stevenson was “heartbroken” about McCleskey and couldn’t believe that the same institution that had decided Brown v. Board of Education had just said that racism was inevitable in the legal system. But after talking to Executive Director Stephen Bright, Stevenson and the rest of the staff formulated a plan.

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Bright agreed that McCleskey was “an everlasting blight on the Supreme Court” and akin to Plessy v. Ferguson by tolerating one kind of justice for white people and another for Black people. He advised his staff to turn a ruling that created a shield for prosecutors into a sword for the defense. They began filing so-called “McCleskey motions,” demanding opportunities to probe whether judges and prosecutors were capable of treating defendants fairly, insisting upon hearings to document forms of societal and official racism, and asking for access to other case files to look for patterns of bias against poor people and racial minorities.

The strategy worked. In the 1987 retrial of George Dungee, a Black man charged in the slaying of a white family in Georgia, the Southern Center insisted that a judge recuse himself because he had used the N-word in open court when referring to a defendant, had supported a segregationist for governor, and was complicit in prosecutorial efforts to remove Black jurors. Accused of being part of a local “system of white dominance,” the judge was forced to step aside. When prosecutors saw that their judicial ally was no longer on the case, they offered Dungee a plea deal that ensured a life sentence. The same thing happened in the retrial of Willie Gamble: Southern Center lawyers called the judge “a rubber stamp racist,” and shortly after he recused, the state folded and took the death penalty off the table.

In the 1988 case, Berryhill v. Zant, the Southern Center successfully challenged a policy of allowing only “upright and intelligent” citizens onto master jury lists because it proved highly subjective and allowed local officials to disqualify women disproportionately. And during the retrial of William Anthony Brooks, a Black man accused of killing a white woman, the Center argued that Brooks could not get a fair trial because two of his prosecutors, who later became judges, had rigged an all-white jury and then made “lynch mob-like arguments.” They demanded a judge from another circuit.

Instead of giving up on statistical evidence to prove racial discrimination, the Center continued to develop empirical evidence of structural inequality in two ways: first, by proving that particular counties still grossly underrepresented women and racial minorities in jury pools; and second, by showing how specific prosecutors—and sometimes an entire prosecutor’s office—manufactured all-white juries.

The biggest payoff from this strategy came in 1991, when the Eleventh Circuit ruled in Horton v. Zant that a prosecutor had systematically used peremptory strikes to eliminate Black jurors from his cases, particularly in cases involving a Black person charged with killing a white person. The painstaking work of SCHR staff to document the state’s unequal valuation of Black and white lives over time convinced the court to order a new trial for Horton. In his ruling, Judge Frank Johnson wrote emphatically: “a prosecutor has a duty to do justice.”

With the Horton decision, racial justice advocates finally had a legal victory that showed how prosecutors exploited the system of unequal justice. Importantly, the Southern Center never accepted the Supreme Court’s assumption that racial disparities were caused by bad apples, but insisted that an overlapping set of practices led to injustice.

Beyond litigation, some have engaged in legislative defiance of the Supreme Court by seizing on stories of racial injustice and persuading elected officials to openly repudiate McCleskey. On these occasions, legislators have rejected Justice Powell’s advice to become comfortable with the inevitability of racism and insisted that ignoring racial disparities exacerbates a crisis of faith in the rule of law.

A few states have enacted racial justice acts, none more far-reaching than one passed in California.

Enacted during the pandemic, the California Racial Justice Act (CRJA) authorizes individuals to challenge their convictions based on race, ethnicity, or national origin. Proponents of this civil rights law described it as a “countermeasure to address a widely condemned 1987 legal precedent”—namely, McCleskey. We “simply cannot accept the stark reality that race pervades our system of justice,” lawmakers indicated, because “discrimination undermines public confidence in the fairness of the state’s system of justice.”

Renouncing McCleskey for the people of California, the law empowers a person to introduce statistical evidence that might show “that the prosecution more frequently sought or obtained convictions … against people who share the defendant’s race, ethnicity, or national origin.” The law goes further than the Supreme Court by making it easier to show that a prosecutor used race-based peremptory strikes.

Could the Supreme Court reverse itself and overrule McCleskey some day? Perhaps, but persuading the Justices that they made a grievous error would be easier with additions to the institution who are open to criminal justice reform. It will also take incremental gains to expand the people’s commitment to racial equality in the several states so that Justices sense that their decisions represent an outlier—at that point, they may feel pressure to adjust their thinking and join the rest of the political community.

Robert L. Tsai is Professor of Law at Boston University and author of Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (Norton 2024).

Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.