LDF’s rich history includes litigating civil rights claims before the U.S. Supreme Court. Only the government has argued more civil rights cases before the Supreme Court. Of the 72 cases presented for the Court’s October 2018 Term (covering the fall of 2018 and spring of 2019), LDF filed an amicus brief in six cases affecting civil rights. Those cases were: Timbs v. IndianaFlowers v. Mississippi; Rucho v. Common Cause/Lamone v. BenisekFort Bend County, Texas v. DavisDepartment of Commerce v. New York; and Obduskey v. McCarthy & Holthus.  


Here, we provide a snapshot of the issue in each case, LDF’s position, the outcome, and its impact on our rights. Our hope is that this summary will be easy to digest (without too much legal jargon) and will underscore the importance of the U.S. Supreme Court (and other courts) to our lives and the future of our democracy. 


Excessive Fines – Application of the Eighth Amendment to the States

Credit: Art Lien

In 2015, Tyson Timbs sold heroin to an undercover police officer, which led to his arrest and the forfeiture of his vehicle, a 2012 Land Rover, by the State of Indiana. Mr. Timbs sued Indiana, alleging that the forfeiture of his Land Rover was a violation of his right under the Eighth Amendment to the U.S. Constitution, which provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The forfeiture was excessive, Mr. Timbs argued, because the value of the vehicle was more than $40,000, while the maximum criminal penalty for his offense was only $10,000.


The Bill of Rights – the first 10 amendments to the Constitution – originally applied only to the federal government (not the states). They were an attempt by the Founders to make sure that government did not become so powerful as to usurp the will of the people. However, the Supreme Court eventually ruled that states, too, should have to abide by most of these rules. The Court relied on the Fourteenth Amendment, which prevents states from depriving a person of “life, liberty, or property without due process of law,” in applying most of the Bill of Rights to the states. The question the Justices faced in this case was, “Does the Eighth Amendment ban on excessive fines apply to states?”


LDF’s amicus brief before the Court documented the history and necessity of the Fourteenth Amendment to our constitutional democracy. Congress passed the Amendment just over 150 years ago to settle the question of the constitutionality of the Civil Rights Act of 1866, which was designed to combat the Black Codes – draconian laws enacted after the Civil War to deprive recently freed slaves of their civil rights and place them in a permanent subordinate status. Our brief explained that the Fourteenth Amendment had two important purposes. One, it guaranteed equal rights to all people in all states, particularly African Americans. 


Two, it provided the federal government with the power to protect these rights should states try to infringe on them. We explained that this history was significant in analyzing the Eighth Amendment’s ban on excessive fines, because such fines were among the practices used to subjugate newly freed slaves in the wake of the Civil War and were precisely the kinds of practices the Fourteenth Amendment was designed to prohibit. 


In a unanimous decision, the Supreme Court ruled in Timbs that the Eighth Amendment’s ban on excessive fines applies to the states through the Fourteenth Amendment. Given that fines and forfeitures have become an important source of revenue for state and local governments and, as documented in LDF’s brief, are disproportionately used by jurisdictions with large African-American populations, this decision will help to safeguard individuals against abuses of government, including criminal law enforcement. While fines and forfeitures imposed by states are still permissible, the Court has now made clear that they may not be excessive.


Jury Selection and Racial Bias

Credit: Art Lien

LDF has a long history of working to eliminate discrimination from the jury selection process. We believe that the right to serve on and be tried by an impartial jury in a nondiscriminatory manner is as critical to our democracy as the right to vote. This is why Curtis Flowers’s case is so important. Mr. Flowers, an African-American man, was on death row. He had been tried six times for the murder of four people in a furniture store in Mississippi. Despite having very weak evidence that Mr. Flowers had committed the murders, Doug Evans, the lead prosecutor in each trial, attempted to remove all 36 African-American prospective jurors in the first four trials. In the sixth trial, which was the trial at issue before the Supreme Court, Mr. Evans used six peremptory strikes to remove five African-American jurors.


In the process of selecting a jury, parties may use what is known as a peremptory challenge. Unlike a challenge for cause, where an attorney must give a reason for not allowing a prospective juror to serve on the jury, peremptory challenges do not require a reason to strike a potential juror. However, the Supreme Court, in its 1986 decision in Batson v. Kentucky, said that while a jury need not be composed in whole or in part of members of the defendant’s race, purposely excluding a person from a jury because of race is a violation of the Equal Protection Clause of the U.S. Constitution.


LDF’s amicus brief in Mr. Flowers’s case illustrated that the discriminatory use of peremptory challenges remains a problem. We cited a detailed statistical analysis conducted by American Public Media (APM) Reports that analyzed 225 trials conducted by Mr. Evans’s office where data on race of the potential jurors was available. The research showed, among other alarming facts, that Mr. Evans’s office struck African-American jurors 4.4 times more frequently than white jurors. APM Reports also found that simply being African American increased a juror’s chance of being struck more than knowing the defendant or even having a family member in law enforcement.


In deciding this case, the Supreme Court considered all of the relevant facts and circumstances and found that Batson had been violated. Justice Kavanaugh, who wrote the opinion for the Court, stated that “[t]he numbers speak loudly,” referring to the number of African-American prospective jurors struck from the six trials. The Supreme Court reversed Mr. Flowers’ death sentence and sent the case to the Supreme Court of Mississippi for further proceedings.



The Fight for “Free and Equal” Elections

Credit: Art Lien

Every 10 years, states use Census data to draw new maps for congressional districts, known as redistricting. When done properly, these maps should allow each person to have an opportunity to participate fairly in the election of officials to represent them in government. While politics does play a role in redistricting, states may go too far in favoring one political party over another, known as partisan gerrymandering. For example, maps may be drawn to divide voters of one political party into multiple districts so that they will not have a majority in any of them.


It is well settled that racial gerrymandering, the process of drawing district lines to prevent people of color from electing their candidates of choice, is unconstitutional, and that courts can hear such claims and provide relief. However, the law has been less clear with respect to partisan gerrymandering. In 1986, the Supreme Court held, in Davis v. Bandemer, that partisan gerrymandering may be unconstitutional in certain circumstances. However, the Court has consistently struggled to identify a workable standard to determine when partisan gerrymandering goes too far.  


In two cases before the Court this term, Rucho v. Common Cause and Lamone v. Benisek, the Supreme Court considered whether North Carolina and Maryland’s congressional maps were unconstitutionally drawn to lock in partisan power well beyond the political considerations that are a part of the typical redistricting process.


LDF filed an amicus brief in both cases, urging the Court to recognize that a claim of partisan gerrymandering can be brought for resolution by a federal court. We also asked the Court to establish a standard for deciding such a claim that would ensure that discrimination based on extreme partisanship is kept out of the redistricting process. We made clear that while racial discrimination is of different moral, legal, and historical roots than partisan gerrymandering, any solution to curb excess political influence in the districting process also can protect minority voters.


Unfortunately, in its decision for these cases, the Court ignored its previous rulings that partisan gerrymandering can violate the Constitution and held that challenges to partisan gerrymandering cannot be heard by federal courts. The Court left the remedy for addressing this issue with Congress and state legislators. This decision leaves rampant political manipulation unchecked by federal courts.


In her dissent, Justice Kagan noted that the maps in North Carolina and Maryland were “highly partisan” and excessive partisanship in districting leads to “unjust results” and is “incompatible with democratic principles.” Underscoring the truth of this statement is the fact that prior to the decision nearly half of the states had enacted laws or constitutional provisions to reduce or limit partisanship in the districting process. At this time, partisan gerrymandering in the other states remain unchecked.


Suing an employer; timing of the EEOC complaint process and filing a lawsuit

Credit: Art Lien

The 1964 Equal Employment Opportunities Act, later known as Title VII of the Civil Rights Act of 1964 (Title VII), became effective in July of 1965. In October of that year, LDF filed Brinkley v. Great Atlantic & Pacific Tea Co, the first-ever Title VII case. By 1966, LDF had filed 25 cases, more than even the Justice Department. One of LDF’s most important triumphs was the Supreme Court’s unanimous 1971 decision in Griggs v. Duke Power Company. Griggs literally transformed our nation’s work places by embracing a powerful tool – now known as the “disparate impact” framework – that has helped to eradicate arbitrary and artificial barriers to equal employment opportunity for all individuals, regardless of their race. In Griggs and hundreds of other class-action suits against employers, unions, and government at all levels, LDF has helped secure jobs and employment rights for tens of thousands of individuals confronted by unfair employment practices.


Title VII requires people who believe they have experienced employment discrimination to first file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the law. The EEOC then investigates the complaint and may resolve it informally or file a lawsuit in federal court. Alternatively, after a certain period of time, the complaining party may request a “right to sue” notice from the EEOC, authorizing them to file a lawsuit on their own in court. A plaintiff generally may not file a lawsuit under Title VII without following this procedure – if they do, the case can be dismissed. 


In Fort Bend County, Texas v. Davis, Lois Davis, an employee, sued Fort Bend County, her employer, for sexual harassment, sex discrimination, religious discrimination, and retaliation after she was fired when she missed work on a Sunday due to a religious obligation. Ms. Davis alleged that her firing was retaliation for a prior report she had made, alleging that she had been sexually harassed and assaulted.


Following the requirements of Title VII, Ms. Davis had first filed a complaint with the EEOC, although her charge did not include a claim for religious discrimination. After receiving her right to sue notice, Ms. Davis filed a lawsuit in federal court. Years later, when only the allegation of religious discrimination remained, Fort Bend County argued for the first time that Ms. Davis’s case should be dismissed because her original complaint to the EEOC did not allege religious discrimination. LDF’s brief called on the Court to affirm Congress’s desire for a robust, effective private avenue for the enforcement of Title VII rights that is not unduly technical and restrictive of rights.


In a unanimous decision, the Supreme Court rejected the county’s argument. The Court explained that while the requirement to file a complaint with the EEOC is mandatory, it can be waived in certain circumstances – including in Ms. Davis’s case, when the county had failed to raise the argument in a timely manner. The decision in this case will protect victims of employment discrimination from having their federal suits thrown out when, after years of litigation, employers contend that they made a mistake in the administrative complaint filed with the EEOC.


The Citizenship Question and the 2020 Census

Credit: Art Lien

Consistent with their view of the importance of representational government, the Founders established in the U.S. Constitution that every person in the United States would be counted every 10 years to determine the number of representatives that each state would have in the House of Representatives. This decennial counting, known as the U.S. Census, has been conducted since 1790. In addition to determining the number of representatives each state will receive, Census data is crucial for allocating billions of dollars in federal funding annually and addressing barriers to equal opportunity in voting rights, education, housing, and criminal justice.


Shortly after the first U.S. Census, the Founders became concerned that undercounting might have distorted the results. But these concerns did not extend to the undercounting of African-American people. At that time, enslaved African Americans were treated as only three-fifths of a person and excluded by law from representation. While the three-fifths calculation was eliminated by the Fourteenth Amendment, the undercounting of African-American people has persisted over time, including through the most recent censuses. Undercounting has enormous practical implications. Accurate Census data is essential to the equitable allocation of political representation and government resources.


For the last 70 years, there has not been a citizenship question on the decennial census that is distributed to all households. However, in 2018, the Trump administration announced that a citizenship question would be added to the 2020 Census. The administration claimed that the question would help the government enforce the Voting Rights Act of 1965 (VRA), which removed barriers preventing African Americans from exercising their right to vote. The basis for this assertion was a December 2017 letter from the Justice Department (DOJ) requesting that the citizenship question be added to the Census.


The administration’s assertion was without support. Data, including information from the Commerce Department (of which the U.S. Census Bureau is a part), showed that the citizenship question would lead to a significant undercount of the U.S. population, especially in immigrant communities and communities of color. Additionally, there was evidence that the Commerce Secretary had not considered the DOJ letter in making his decision to include the question.

Maintaining that this undercounting would have devastating consequences on immigrant communities of color and noncitizen persons, LDF filed an amicus brief urging the Court not to allow the question to be added and arguing that it had no relationship to VRA enforcement.

In one of the most watched cases of this term, the Supreme Court ruled that the citizenship question may not be added to the 2020 Census at this time. While the Court said that the Secretary of Commerce might be permitted to ask the question if he had a valid reason for doing so – even if the question would reduce participation rates – the Court rejected the administration’s justification as “contrived.”


This decision is an important win for civil rights groups and for democracy. In fact, Justice Breyer cited LDF’s amicus brief in his concurring opinion joined by Justices Ginsburg, Sotomayor, and Kagan to support the conclusion that the citizenship question would “not help enforce” the VRA. However, the administration continues to look for a “path forward” to allow it to use the citizenship question on the 2020 Census with a new rationale. 


Protections Against Unfair Debt Collection Practices in Foreclosure

Credit: Art Lien

The Fair Debt Collection Practices Act is a law not often discussed, but one that has enormous impact on the lives of most Americans. Enacted in 1977, the FDCPA, as it is known in short, bans debt collectors from using unfair or deceptive practices to collect debts from people. This means that the FDCPA bans debt collectors from doing things like calling in the middle of the night, harassing or threatening people, and misleading people about what they owe. 


The FDCPA also requires debt collectors to provide people with specific notices and information, like validation of alleged debts, to prevent unscrupulous collectors from demanding money that people don’t rightfully owe. Since one in three Americans has an account in collections at any given moment, and nearly half of people of color have an account in collections, these protections are designed to allow all of us to live our financial lives in relative peace.


In Obduskey v. McCarthy & Holthus, a law firm asked the Supreme Court for a big exception to the protections in the FDCPA. McCarthy & Holthus is a law firm that represents mortgage lenders and initiates foreclosures against homeowners who are behind on their mortgages. In this case, the law firm attempted a nonjudicial foreclosure, i.e. a foreclosure that takes place outside of any court process, without following the requirements of the FDCPA. The law firm asked the Supreme Court to hold that foreclosing on a person’s home is not debt collection, and therefore that homeowners facing nonjudicial foreclosure are not protected by most provisions of the FDCPA.


In addition to arguing that the FDCPA protects homeowners facing all kinds of foreclosure, LDF’s brief highlighted the particular risks faced by African-American homeowners. Our brief explained that, due to more than a century of discriminatory housing policies, African Americans are more vulnerable to debt collection abuses by law firms like McCarthy & Holthus that specialize in foreclosing on homeowners. Therefore, the FDCPA’s protections in the foreclosure context are a matter not just of consumer justice, but of racial justice.


Unfortunately, the Supreme Court held, in an 8-0 ruling, that the protections in the FDCPA at issue in this case did not apply to McCarthy & Holthus. Importantly, the Court did not go as far as the law firm asked. The Court did not hold that the FDCPA is wholly inapplicable to nonjudicial foreclosures. Rather, as Justice Sotomayor points out in her concurrence, the Court only held that when a party is doing nothing but following the state process for a nonjudicial foreclosure, some of the FDCPA’s protections do not apply. If the foreclosing party, however, does anything at all outside of what is strictly required by the state foreclosure process, that conduct may be covered by the FDCPA, and all the Act’s protections may apply.


“[T]his is a great country, but . . . it is not perfect. There is much to be done to bring about complete equality.” Thurgood Marshall (Commencement Speech at The University of Virginia, May 21, 1978)



Please look for our Supreme Court RoundUp at the beginning of the October 2019 Term where we will discuss upcoming civil rights cases.