Civil Rights vs. Supreme Court: a Now and Historic Battleground

The Supreme Court term now ending should be viewed with alarm by anyone committed to the eradication of racial oppression in America. The court did not uniformly rule against minority claimants. But by and large they have found the court a hostile forum--a “white man’s court” rather than one sensitive to the just claims of all who come before it. In a certain sense, though, this represents business as usual. After all, throughout U.S. history, the Supreme Court has compiled a dismal record with its race relations jurisprudence.

Before the Civil War, the court leaned over backward to interpret the Constitution and statutes in ways that satisfied the demands of slaveholders and their allies. When Dred Scott, a slave, sued for his freedom in 1857, Chief Justice Roger Taney declared that under the Constitution, blacks--whether slave or free--could not be deemed U.S. citizens and so could not invoke the aid of the federal judiciary. After Reconstruction, the Supreme Court helped subvert the constitutional amendments that attempted to elevate blacks to a legal status equal to whites. For example, although Southern white officials outwardly indicated determination to circumvent the 15th Amendment’s prohibition against racial exclusion in voting, the court refused to rule in favor of black plaintiffs.

From about 1945 to 1968, the court made several rulings that significantly benefitted the cause of racial justice. Most important, it invalidated the Jim Crow system of segregation, whereby states relegated racial minorities to separate facilities usually far inferior to those for whites. During this period, the court also upheld legislative initiatives such as the Voting Rights Act of 1965. It is wrong, however, to exaggerate what was done by the court even in its most liberal moment, when it was guided by Chief Justice Earl Warren. The Warren court was not the bold, insistent champion of racial egalitarianism that many critics or admirers have imagined and mythologized. Its achievement consisted of cautiously invalidating the most blatant types of official bigotry. Unfortunately, since 1968, the Supreme Court has slowly retreated from the rather modest level of support for civil rights established by the Warren court.

This history puts the court’s recent decisions in perspective. Although there has been much talk lately about the right-wing lurch in the court’s race-relations jurisprudence--with the elevation of William H. Rehnquist to chief justice and the appointments of Justices Antonin Scalia and Anthony M. Kennedy--none of the court’s rulings this term should come as a surprise. This should not be taken as an implicit justification of these recent rulings. The problem with the court runs far deeper than many critics are willing to acknowledge.

Preferences in favor of racial minorities--”affirmative action”--have been the focus of recent debate over racial policy, both inside and outside the judiciary. This term, in two rulings based on 5-4 majorities, the court placed affirmative-action programs under increasingly stifling restrictions, making such programs far more vulnerable to attack by whites who perceive themselves as victims of “reverse discrimination.”

As troubling as these rulings are to those who see affirmative action as equitable social policy, they represent a far less dangerous tendency than a second group of court decisions. This second group tested the court’s commitment to laws used principally by minorities to defend against active racial discrimination.

The court’s handling of these cases reveals more than an absence of strong commitment--it reveals a disaffection with such laws, an aversion manifested by a militant insistence on interpreting civil rights statutes as narrowly as possible. Passionate in its defense of the anti-discrimination principle in situations where white workers allege injury because of affirmative action programs, the court equivocates when addressing disputes that involve minorities complaining of racism.

In the last two weeks, the court decided a number of cases that reveal its racially selective empathy. In Ward Cove Packing Co. vs. Atonio, for example, the court transferred the burden of proof in certain suits from defendants to plaintiffs. Writing for the court, Justice Byron R. White showed concern for the burdens imposed on businesses by anti-discrimination legislation. He showed little concern, however, for the burdens that litigation imposes on hard-pressed minority employees.

The best illustration of the court’s ethos, however, is Patterson vs. McLean Credit Union, decided just days ago. Brenda Patterson, a black woman who worked as a teller, said that, because of her race, she had been subjected to harassment over the course of her 10-year employment, passed over for promotion and eventually fired. With respect to racial harassment, she testified that she was singled out for scrutiny and criticism; that, unlike her white clerical co-workers, she was ordered to do menial work--dusting and sweeping--and that she was subjected to a supervisor’s racial insults.

Patterson sued her employer under a provision of the Civil Rights Act of 1866, which provides that all “persons . . . shall have the same right in every state and territory to make and enforce contracts . . . as is enjoyed by white citizens.” That statute, the federal government’s oldest civil-rights legislation, was enacted after the Civil War to counteract attempts by Southern whites to relegate former slaves to a semi-slave status.

The Supreme Court disposition of Patterson’s case was not a complete disaster for civil-rights advocates. The court declined to reverse precedent, holding that the act applied to private persons as well as state officials. The court also ruled in favor of Patterson’s contention that the trial judge erred when he instructed the jury that, to prove discrimination in promotion, Patterson would have to establish she was superior to whites promoted in her stead. The court recognized that an employer could be guilty of purposefully discriminating against a black worker even if that worker was no better qualified than a white competitor; because failure to promote an employee could be justified on a permissible basis, it does not mean this was the real motivation of the employer’s action.

The problem with the Patterson decision concerns a third issue: whether the act’s prohibition against racial discrimination in contracts applies to racial harassment after a person is hired. Writing for the court, Kennedy held that the act’s protection “extends only to the formation of a contract, but not to problems that may arise from the conditions of continuous employment.” In other words, according to the Supreme Court, the act prohibits an employer from refusing to hire someone on the basis of race, but does not prohibit that employer from later subjecting the employee to discriminatory conditions.

The stated rationale for this bizarre conclusion is flimsy. First, Kennedy asserts that the act’s “most obvious feature” is “the restriction of its scope to forbidding discrimination” in making contracts. Perhaps that is “the most obvious feature” for someone preoccupied with finding ways to confine the act to its narrowest scope. But it is a downright peculiar reading otherwise, one even more restrictive than that offered by the Reagan Administration’s solicitor general. Second, Kennedy argues that excluding racial harassment makes sense because Title VII of the Civil Rights Act of 1964 prohibits such conduct. He claims the majority interpretation avoids “unnecessary overlap” and respects the “delicate balance between employee and employer rights” Congress created in enacting Title VII. Yet Kennedy neglects to mention that the act is far broader than Title VII. For instance, Title VII applies only to employers with 15 or more employees. The act has no such limitation and can potentially reach the 15% of the work force unprotected by Title VII.

Furthermore, even if there is some degree of overlap, Kennedy fails to provide a compelling explanation as to why, in the specific context of racial harassment, this represents a problem. As Justice William J. Brennan Jr. writes in his angry dissent, the fact that the act “provides a remedy for a type of racism that remains a serious social ill broader than that available under Title VII hardly provides a good reason to see it, as the court seems to, as a disruptive blot on the legal landscape.”

The unstated perception that appears to have driven the majority to its deplorable conclusion is that people like Brenda Patterson have too much legal protection, that the country’s anti-discrimination law is in need of pruning.

Although the court sensibilities as expressed in Patterson are grounded in a still-powerful American tradition, there exists an honorable countertradition that has, from the days of slavery, nurtured struggles against racism. One way to show allegiance to that tradition would be to support congressional legislation stating that the Civil Rights Act of 1866 does prohibit racial harassment. This would not be the first time Congress has come to the aid of the act. When first passed by Congress, it was vetoed by President Andrew Johnson.

Some of Johnson’s complaints sound hauntingly familiar. The act, he objected, “establish(es) for the security of the colored race safeguards which go infinitely beyond any that the general government has ever provided for the white race.” Congress overcame the President’s obstructionism to save the nation’s first federal civil-rights law. Now it is time for Congress to rouse itself again and save the act from evisceration by an obstructionist Supreme Court.