Complicit Bias and the Supreme Court

Definitions

• Complicit: Involved with others in wrongdoing. (Oxford American Dictionary)
• Bias: Prejudice in favor or against something considered unfair. (Oxford American Dictionary)
• Complicit Bias:
  1. Awareness of harm and refusal to intercede, knowing it will prejudice others.
  2. Inclination to protect based on relationship or group characteristics.
  3. Further harm through silence and inaction.

Introduction

• Judges and courts are not immune to biases and may perpetuate injustice.
• Historical cases show judicial complicity in discrimination (Dred Scott, Buck v. Bell, etc.).
• Complicit bias can lead judges to uphold unjust laws due to external pressures or personal beliefs.

Implicit and Explicit Bias

• Judges are not immune to implicit biases.
• Complicit bias: Aware of harm but do not act due to biases.
• Examples: Supreme Court cases showing judicial biases.

Theory of Complicit Bias

• Complicit bias involves awareness of harm without intervention.
• Inclination to protect certain groups can lead to biased rulings.
• Silent or inactive furtherance of harm.
• Supreme Court decisions like Dobbs v. Jackson analyzed under this lens.

Supreme Court and Reproductive Rights

• Dobbs v. Jackson decision showed conservative bias in dismantling reproductive rights.
• Justice Thomas suggested revisiting substantive due process cases.
• Concerns about the reliability of privacy protections.

Racial Discrimination and the Supreme Court

• Professor Bridges' Foreword:
  • Court acknowledges racism only in overt cases.
  • Modern subtle racism often ignored.
  • Voting rights: Discrimination not acknowledged by the Court as systemic or ongoing.
• Shelby County v. Holder: Reluctance to recognize racism in voting laws.

Bridges' Argument

• Roberts Court willing to address racial injuries resembling pre-Civil Rights Era.
• Different standards for racial discrimination claims for whites vs. nonwhites.
• Structural racism and its denial by the Court.

Complicit Bias Framework

• New concept to address inaction in face of discrimination.
• Different from implicit (unaware) and explicit bias (purposeful discrimination).

Essay Structure

1. Part I: Outlines complicit bias theory.
2. Part II: Historical analysis of complicit bias in jurisprudence.
3. Part III: Real-world implications, focusing on Dobbs decision and aftermath.

Conclusion

• Judicial complicit bias has real-world consequences.
• Calls for recognition and addressal of complicit bias in legal systems.
• Importance of understanding bias to prevent systemic discrimination.