Occasioned by his recent NYRB article about the death penalty, I have a new American Prospect article about John Paul Stevens and equal protection. I think that his relatively obscure solo dissent in Armstrong v. U.S. is particularly instructive, both about Stevens’s understanding of equal protection and the extent to which Breyer and Ginsburg did not fill the void on the Court left by Brennan and Marshall:
The “war on drugs” is an area of public policy where racial discrimination has been particularly egregious. So the relatively obscure case Armstrong v. U.S. provides an illuminating example of Stevens’ criticism of the Court’s approach to equal protection. In that case, the Court prevented defendants indicted for offenses involving “crack” cocaine from examining evidence from the files of the U.S. attorney’s office. It did so despite the fact that the defendants provided clear evidence of systemic discrimination (as Stevens noted, “While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack”) and provided at least anecdotal evidence of discrimination on the part of the U.S. attorney.
As Stevens explained, combined with McCleskey, the case created what should be a constitutionally intolerable catch-22: Defendants have to provide evidence of individualized rather than systematic discrimination, but the Court then establishes conditions that make proving individualized discrimination impossible. Yet this effective sanctioning of racial discrimination in the criminal-justice system was sanctioned by the other eight justices, including Democratic appointees Stephen Breyer and Ruth Bader Ginsburg.
The formalist Catch-22 con has been run by the Court’s conservatives pretty much since the ink on the 14th Amendment was dry. Even in its most white supremacist periods, the Supreme Court wouldn’t uphold laws that explicitly prevented African-Americans from voting or serving on juries. As long as states excluded African-Americans by applying formally race-neutral laws in a discriminatory manners, however, the Supreme Court washed its hands, creating standards that made it essentially impossible to prove discrimination. The nice Kafkasesque circle of denying the relevance evidence of systemic discrimination and then making it nearly impossible to prove individualized discrimination is just the latest iteration. You’d think that if being a liberal justice meant anything, it would be to see through this — and yet the moderate Illinois Republican dissented alone.