The essence of the American experience throughout its history has been race.  From the country’s very beginning when the founders sidestepped slavery, through the Civil War and through the civil rights movement, racial identity – and the meaning of Americanhood – has been a focal point in the events of our time.  The Supreme Court’s affirmative decision on Arizona’s anti-HispanicLatino law maintains – and in fact raises – race as a central theme of the nation’s destiny.  Not only can any HispanicLatino be stopped by local enforcement officials but also blacks, Asian Americans and any dark-skinned person thought to be from anywhere else.  In that sense, Arizona Gov. Jan Brewer was correct in claiming that the “heart” of her state’s racist law that permits racial profiling was confirmed. 

But Brewer also said that local enforcement authorities will be held “accountable” if they engage in racial profiling.  From my days covering police departments as a reporter years ago and then later when I worked as a speechwriter for the commissioner of the old Immigration and Naturalization Service, I know the power and discretion that local officers have.  And some, no doubt, will go overboard.  And therein Brewer has no idea how accountable local governments will be held, for the moment that any citizen or any other person in the country legally has his or her rights violated by overzealous officers, they must sue the local governments that officer represents. 

Only a cascade of lawsuits that will hurt local governments financially can push back the wave of discrimination that will soon be visited upon unsuspecting HispanicLatinos and other individuals of color.  County and city and school districts that engage in any kind of discrimination must be taken into account – immediately.  HispanicLatino attorneys must be the first line of attack on the Court’s tragic decision.  In the smaller towns and cities and marginal localities in which HispanicLatinos are at the most risk, properly timed lawsuits against these local governments can bankrupt many of them. The Court left open the possibility that the most odious part of the decision could be challenged almost immediately.  Let those legal assaults begin in earnest on all fronts.  HispanicLatino attorneys literally must invade local courthouses with lawsuits.  Local and state governments should pause before moving forward on ill-fated, ill-advised efforts that will prove counterproductive in the end.

A pivotal implication of the Court’s decision, then, is the slow movement of history pushing HispanicLatinos to the lead of the civil rights struggles of the future through the legal system.  The Court put in high relief the lead role that HispanicLatinos – the principal force changing the country’s demographics – are going to play in its future.

In more ways than most people can appreciate, this is a pivotal moment in the nation’s history.  The Court did nothing to advance the notion that the nation one day will get over the question of the color of one’s skin.  And in deciding infamously on Bush v. Gore, women’s wages, campaign finance reform and, probably, health care and, certainly, on Arizona, the Court is on the wrong side of history.  HispanicLatinos can advance their history-altering responsibilities by making sure that the Court – its decisions and its composition – become an election-year issue.

If HispanicLatinos in fact are destined to change the country, let them start by remaking the Court by helping re-elect a President who might yet have the opportunity to appoint another justice or two.