THE NATION : THE SUPREME COURT : On Race--Rehnquist’s Been Waiting 40 Years

The U.S. Supreme Court ended its term with a bang last week. In one of many five-to-four rulings, the justices struck down the creation of majority-black congressional districts. After the 1990 census, congressional districts were redrawn with a view toward increasing the representation of blacks, Latinos and other minorities in Congress. And the number of so-called majority-minority districts doubled. But, in Miller vs. Johnson, the court held such racial gerrymandering is impermissible.

Thursday’s decision in Miller fit a larger pattern and reinforced the message of other recent rulings--namely, the Supreme Court has abandoned its decades-old role of combatting racism in the country. A solid majority of the Rehnquist Court no longer abides government attempts to reach out to help blacks and other minorities or, for that matter, women. That is so whether the issue is achieving integrated public schools, affirmative-action programs in employment or promoting the political representation of minorities and women.

Chief Justice William H. Rehnquist commands a solid majority for positions he has long held. He can count on the votes of Justices Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy--all appointees of Republican President Ronald Reagan--as well as that of Justice Clarence Thomas, appointed by President George Bush. This bare majority controls rulings on race. Increasingly, the four more moderate justices--Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--are relegated to dissenting as a bloc.

The court has unquestionably moved in Rehnquist’s direction--and he has been waiting four decades for this. More than 40 years ago, when serving as a clerk to Justice Robert H. Jackson, Rehnquist wrote a memo urging that the doctrine of “separate but equal” not be overturned. But, the Warren Court unanimously decreed that segregated schools are unconstitutional in Brown vs. Board of Education, in 1954. That landmark ruling inaugurated a new era and lent legitimacy to the civil rights movement. Now, as chief justice, Rehnquist finally commands a majority to end this era.

It is easy to forget how much has changed--in so short a time. Following Rehnquist’s 1972 appointment to the high bench by GOP President Richard M. Nixon, the court, under then-Chief Justice Warren E. Burger, gradually became more conservative. Yet, even that court remained far too moderate for Rehnquist. He filed so many solo dissenting opinions that his law clerks referred to him as the “Lone Ranger.” He even dissented when the Burger Court approved busing as a way to achieve integration and when it approved affirmative action programs.

Not until Rehnquist’s elevation to chief justice, in 1986, did the court retreat from championing the quest for equality. At a time when schools are becoming resegregated, particularly in the West, the Rehnquist Court is sending lower federal courts the message to abandon efforts to promote integration. In 1992, in Freeman vs. Pitts, the court gave lower federal courts greater leeway to withdraw judicial supervision from desegregation efforts. This term, in Missouri vs. Jenkins, the court went even further in signaling the end of the Brown era.

Writing for a bare majority in Missouri vs. Jenkins, Rehnquist rebuffed a federal district court for ordering the creation of magnet schools and remedial “quality education” programs. The lower court had done so to make schools in Kansas City, Mo., which have more than 90% black students, more attractive to white students in surrounding suburbs. But Rehnquist ruled that the lower court exceeded its powers in trying to eliminate the vestiges of discrimination.

By contrast, the four dissenters--Stevens, Souter, Ginsburg and Breyer--sharply criticized the majority for rushing to abandon desegregation efforts. “Given the deep, inglorious history of segregation in Missouri,” Ginsburg wrote, “to curtail desegregation at this time and in this manner is an action at once too swift and too soon.”

The story is much the same with the Rehnquist Court’s rulings on affirmative action. Here, again, the court has dramatically reversed course. In the 1970s and early ‘80s, the court lent legitimacy to programs designed to open opportunities for blacks, women and other minorities. More than any other branch of government, it rationalized them and spent its institutional prestige defending them. In doing so, the Burger Court tried to ease racial tensions and to balance competing claims pragmatically. Rigid quotas were ruled out categorically, while programs in higher education aimed at achieving diversity were deemed constitutionally permissible. These programs passed what was called “exacting judicial scrutiny,” because they were benign and enhanced the educational experience.

In a series of rulings on employment, the Burger Court also approved programs advancing the goal of diversity without penalizing or depriving white employees of their vested economic interests. Set-asides for minorities in training programs and in subcontracting for minority-owned businesses were approved. So was the targeted hiring and promotion of minorities and women as a remedy for past discriminatory practices. When such programs came at the cost of sacrificing whites’ seniority in layoffs, however, the Burger Court drew the line. As a result, generations of blacks, other minorities and women entered fields of education and employment that had previously been closed.

Those rulings have now been repudiated by the Rehnquist Court’s tough stance against affirmative action. In 1989, writing for the majority in City of Richmond vs. J.A. Croson, O’Connor struck down a set-aside program for minority-owned subcontractors for public-works projects. In her decision, she applied the court’s toughest standard of review--”strict scrutiny”--so as to rule out virtually all state and local affirmative-action programs, unless they are narrowly tailored remedies for past discrimination.

Yet, one year later, in Metro Broadcasting vs. FCC, Justice William J. Brennan Jr. managed to stitch together a bare majority for again upholding affirmative-action programs adopted by the federal government. Then, as fate would have it, Brennan retired that year and, in the next four years, so did three other members of the majority in that case. Justice Thurgood Marshall retired in 1991, as did Justices Byron R. White, in 1993, and Harry A. Blackmun, in 1994. So, this year, the only member of Metro Broadcasting’s majority still on the bench is Stevens.

Not surprisingly then, this term the Rehnquist Court jumped at the chance to overrule Metro Broadcasting in Adarand Constructors vs. Pena. As in Croson, O’Connor wrote for the majority and applied the “strict scrutiny” test to make it exceedingly difficult to defend federal affirmative-action programs, no less than state and local programs. Once again, Stevens, Souter, Ginsburg and Breyer dissented and criticized the majority’s denial of Congress’s power to address “the persistence of racial inequality.”

The Rehnquist Court has ushered in a new era in dealing with race relations. In the past five years, a grave sea change swept the court. Gone is much of the equal protection architecture put into place over the last 40 years. Also abandoned is the historic role the court played under Chief Justice Earl Warren and continued to play under Burger.

As the rulings this term underscore, the Rehnquist Court is no longer willing to confront racism in the country. It has turned a blind eye to the fact that race still matters. Moreover, as chief justice, Rehnquist commands a majority for denying democratically elected representatives in Congress and state legislatures the power to challenge the persistence of racism. This is precisely the kind of judicial activism he once deplored.*