The Continuing Struggle of Civil Rights on the High Court

The U.S. Supreme Court’s June 13 decisions invalidating four predominantly minority-electoral districts in North Carolina and Texas show that, once again, the court’s conservative justices have made it a major obstacle to racial justice in America.

Although it will perhaps surprise many, this is nothing new. For much of its history, the court has defended white privilege. The decade before the Civil War saw three decisions on behalf of slaveholders--including the infamous Dred Scott case in 1857. Shortly after the bloody struggle against human degradation, the court severely limited federal power to fight lynchings and private discrimination, ultimately dismantling much of the Reconstruction legislation. In 1896, in Plessy vs. Ferguson, it wrote Jim Crow into the Constitution.

As late as 1935, the Supreme Court allowed the Texas Democratic Party to exclude black voters from the Democratic primary--even though a primary victory was tantamount to election. Only with the arrival of President Franklin D. Roosevelt’s New Deal justices did matters change significantly. That relatively brief interlude now seems over, at least with the court’s current composition.

When the 14th Amendment was adopted in 1868, it was expected that the Supreme Court would protect the rights of the freed blacks against the white majority’s hostility. Yet, most of these antiblack decisions have reflected the prejudices and fears of the white majority of their times. Supreme Court justices are selected by and from the social and political majority--and American’s white majority has not often been willing to cede social, political or economic power to minorities. As a result, only during a fraction of its history--from 1938 to 1988, during part of which the nation had a brief reform impulse--has the court chosen to significantly advance racial justice.

The voting rights decisions are a good example of the court’s current handling of these issues.

North Carolina is 27% black; Texas is 11.6% black and 22.5% Latino. Before 1992, North Carolina, entitled to 10 representatives overall, had had no black congressional representative since 1901. Texas had had only one black out of 27 and four Latinos. The 1990 census entitled North Carolina to one more representative and Texas to three more. The Justice Department insisted that three of North Carolina’s 11 be black--about 27%. On its own, Texas created one more black district--still far below the 11.6% accounted for by the state’s black population, and two Latino districts, one of which promptly elected a white.

In each case, the district lines were drawn not just to promote racial concerns, but also to protect incumbent members of Congress and to preserve common characteristics--such as closeness of a principal city or the urban or rural ambience of the area. Some were indeed shaped peculiarly; that, however, is hardly unusual for electoral districts.

The trial court in the North Carolina case upheld the districts, but the Texas court struck them down. In the Supreme Court, the five conservative justices concluded that, despite the importance of the nonracial factors, race was the “predominant factor,” and this called for the closest judicial scrutiny as to both purpose and means. In practice, this has meant almost certain rejection.

It proved true, again, in these two cases. Mouthing their platitudes about the need to continue fighting discrimination, the conservatives invalidated the districts, effectively gutting the 1982 Voting Rights Act, which was designed to enhance minority political power. A dark cloud was cast over the districts of half the black members of Congress--probably leaving North Carolina without any black representatives.

The decisions are notable for their intellectual shabbiness and moral myopia. The court stressed the “bizarre” shape of some of the black majority districts. But districts gerrymandered for political purposes--which the court tolerates--often have shapes equally “bizarre.” Also, in the Texas case, the majority gave deference to the district court’s conclusion that race predominated, but that deference was noticeably absent in the North Carolina case--where the district court had concluded that race did not predominate.

Perhaps the most glaring example of the Supreme Court’s racially skewed double standard is its willingness even to hear these cases. Since the early 1970s, conservative justices have insisted that the Constitution forbids the federal courts to hear a case unless the claimant can show he suffered an actual, particularized injury from the defendant’s actions. The suits they have thrown out for this reason include claims by black parents protesting Reagan administration laxity toward segregated private schools; people seeking low-income housing; welfare recipients and environmentalists.

In the districting cases, the white plaintiffs did not even claim that their voting rights had been injured but only that the legislature had sent a message that “there were black districts and white districts.” Under current law, this is clearly inadequate. Nonetheless, the majority fashioned a special rule allowing the white voters to sue.

The dual premise underlying the court’s decisions is that racial measures designed to help minorities are to be viewed with the same strict scrutiny as those designed to hurt them, and that “racial stereotypes” that treat people as if their “political identity is predominantly racial” are constitutionally unacceptable.

Neither proposition is tenable. Courts view racial classifications with strict scrutiny because there is a well-founded fear that racial prejudice against minorities is at work and the minority is usually too politically weak to overcome it. That has no relevance to preferences given to minorities in order to help them overcome centuries of prejudice, oppression and discrimination--even if the preferences may incidentally harm whites.

Moreover, to deny that race plays a major role in how people vote is to make colorblindness an excuse for a deliberate refusal to see. Even Justice Sandra Day O’Connor acknowledged that both the long history of Southern voting discrimination and recent court rulings showed “racial polarization that candidates preferred by African American votes were consistently defeated.” But unless the remedy incorporates “sound” districting principles and reflects “the racial group’s residential patterns,” she would not let it stand. Yet nothing in the Constitution mandates “sound” districting principles or adherence to residential patterns.

In a separate opinion, O’Connor added her now almost routine teaser that, in some cases, she would accept some majority-minority districting. One will search in vain, however, for more than a few scattered decisions in her 15 years on the court where she voted for a black victim of discrimination.

These voting rights decisions will drastically shrink minority representation in Congress, and weaken efforts to protect the poor and the weak. They can only worsen black political apathy and bitterness--especially since they are only the most recent in a nearly unbroken pattern of close decisions against minorities that began in 1988, when conservative Justice Anthony Kennedy joined this court.

In 1989, for example, the court issued a set of decisions sharply limiting the ability of minorities and others to win suits under Title VII of the Civil Rights Act, which bars discrimination in employment. The decisions were so egregious that Congress overwhelmingly overturned them all in 1991. Despite the slap on the wrist, the court continued is assault on Title VII with decisions in 1993 and 1994.

Also in 1989, the court reversed its decade-long support for affirmative action by striking down Richmond, Va.’s program setting aside a small percentage of government contracts for minorities. The decision virtually doomed 36 state and 199 local minority set-aside programs. The other shoe dropped last year, when the ruling was extended to federal contracts. The irony is that O’Connor and Justice Clarence Thomas, two of the most vociferous critics of affirmative action, can be viewed as its two most prominent beneficiaries.

School desegregation efforts have also been hit hard. Rulings in cases from Atlanta (1991), Oklahoma City (1992) and Kansas City (1990) have urged the federal courts to abandon their desegregation effort, despite the increasing racial isolation in America’s schools.

In 1952, William H. Rehnquist, then a law clerk to Justice Robert H. Jackson, wrote the justice during deliberations on the school segregation cases, “I think Plessy vs. Ferguson was right and should be reaffirmed.” He lost then--but as chief justice may finally have gotten his way.*