O'Connor as a 'Centrist'? Not When Minorities Are Involved

Herman Schwartz is a professor of constitutional law at American University and author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution."

White America seems bent on turning a blind eye to the many problems that nearly four centuries of racial injustice have created. Among those leading the way is Supreme Court Justice Sandra Day O'Connor.

To many academics and journalists, O'Connor is a moderate conservative, a "centrist." The Economist has described her as "having staked out the center on many of the great questions before the court." The Times has referred to her "distinct and carefully nuanced middle-ground positions" on various issues.

That may be true on some issues, but not when the civil rights of racial minorities are at issue. In decisions significantly affecting the efforts to fight racial discrimination and its effects, she has almost always voted against the racial minority in favor of the white majority, except where the Supreme Court is unanimous or near-unanimous. For example, despite her constant rhetoric about sometimes allowing "race-based-action [if] neces- sary to further a compelling interest" (which led one commentator to refer to her as "groping for an intermediate, subtle fine-grained position [on] the affirmative action problem"), she never has voted to allow a specific affirmative action plan for blacks or other minorities.

She has, in fact, been the court's leader in its assault on racially oriented affirmative action. Her underlying premise in these cases seems to be that a temporary preference designed to help a relative handful of racial minorities overcome the damage inflicted by centuries of brutal subjugation and discrimination is to be treated as if it were just as immoral as the laws that perpetrated that brutalization, a position openly espoused by Justice Clarence Thomas. The irony, of course, is that she and Thomas are the outstanding examples of affirmative action in recent history.

To analyze her record, a computer search of her votes on cases involving racial minorities since 1981-82, her first term, was made, supplemented by a search through the annual Supreme Court surveys by United States Law Week. This analysis discloses that in the 16 full years that O'Connor has been on the court, it has decided some 67 cases dealing directly and specifically with the rights of racial minorities (treating multiple cases with the same issue as one). Of these, 26 cases were decided either unanimously (13), by 8-1 (5) or by 7-2 (8), with 41 sharply split racial decisions.

Putting aside for the moment the 26 decisions decided by unanimous, 8-1 or 7-2 votes, where she voted for minorities 16 times, 11 in the 13 unanimous cases, of which seven were in her first five years, O'Connor has voted against the minority litigant in all but two of the 41 close cases involving race.

These cases have dealt with almost every legal issue related to racial justice, including voting rights, employment, school desegregation, affirmative action, the scope of enforcement for federal civil rights statutes, jury selection and capital punishment. In these cases, she often has ignored or repudiated her own prior rulings against civil rights claimants, racial and otherwise, on access to the courts and on federal power.

For example:

* In 1996, she joined a William H. Rehnquist opinion, following an earlier path-breaking decision she authored in 1993, in which the court struck down an electoral districting plan designed to facilitate the election of two black representatives out of 12 from North Carolina, a state that had not had any black representative since Reconstruction and which was approximately 20% black (Shaw vs. Hunt; Shaw vs. Reno).

* In 1989, she joined a series of employment-discrimination decisions which, among other things, read a civil rights statute as not including racial discrimination in promotions, and made it more difficult to prove racial discrimination in employment (Patterson vs. McLean Credit Union; Wards Cove Packing Co. Inc. vs. Atonio), both subsequently overturned by Congress.

* In three cases in 1990, 1991 and 1995, she voted to relieve school districts of the obligation to desegregate--though both the fact and effects of segregation were still present (Missouri vs. Jenkins; Freeman vs. Pitts; Missouri vs. Jenkins).

* In 1987, she joined a 5-4 majority that voted to ignore strong statistical evidence of racial discrimination in capital cases, including evidence that black defendants were more likely to receive the death penalty than others (McCleskey vs. Kemp).

The sole exceptions to this pattern were when she was part of a 6-3 majority ruling, in 1982, that the at-large election system for a Georgia County Board of Commissioners violated equal protection (Rogers vs. Lodge), and in 1991, that state judges are covered by the ban on vote dilution of Section 2 of the Voting Rights Act (Chisum vs. Roemer).

A few cases may have been missed in this tally, and there may be disagreement over what is here considered a case directly affecting the rights of racial minorities. But the overall picture is clear: Except where the matter is so much in favor of the racial minority that the vote is unanimous or close to it, O'Connor can be counted on to vote against the racial minority almost every time.

There is another criterion for approaching these issues, covering the entire range of cases before the court during the last 16 years: With which colleague has O'Connor voted most frequently? Chief Justice Rehnquist, according to the annual statistical compilation of voting alignments by the Harvard Law Review. Obviously, no one has ever called Rehnquist a "centrist." In nine of those years, Rehnquist was her No. 1 ally; he was her second most frequent voting companion in six, and third most frequent in one. In 1997, when Rehnquist ranked second, her most frequent voting colleagues were Thomas and Justice Anthony M. Kennedy. During her 16 years, her alignments with Rehnquist ranged from 93.4% to 63.2% (that latter year, White was first on her list with 64%), three times more than 90%.

O'Connor's rhetoric and record reflect white America's attitude today toward racial problems: Much talk about the need to remedy, what she herself has described as "the unhappy persistence of both the practice and the lingering effects of racial discrimination," but a consistent hostility to concrete steps toward achieving that. It is thus hardly surprising that, perhaps for the first time since 1954, the Supreme Court this year will hear not a single case involving racial injustice. The one case initially on the docket, the affirmative action case from Piscataway, N.J. was settled by the civil rights groups before argument. They know how little hope they had of getting O'Connor's vote, despite all her soothing assurances.

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O'CONNOR VOTES IN CASES AFFECTING MINORITIES

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5-4 or 6-3 5-4 or 6-3 7-2 7-2 8-1 8-1 Unanimous YEAR AGAINST FOR AGAINST FOR AGAINST FOR AGAINST 1997 2 1 1996 2 1 1995 3 1 1994 2 1 1 1993 2 1 1992 1 1 1 1991 2 1 1 1990 4 1989 5 1988 1 1987 3 1986 3 1 1985 0 2 1984 4 2 1983 1 1 2 1982 4 1 1 1 1 Totals 39 2 5 3 3 2 2

Unanimous YEAR FOR 1997 1996 1995 1 1994 1993 1992 2 1991 1990 1989 1988 1987 1986 1 1985 1984 1983 1982 2 Totals 11

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THE 67 TOTAL CASES ON WHICH THIS STUDY IS BASED ARE:

1982: Havens Realty Corp. vs. Coleman; American Tobacco Co. vs. Patterson; Kremer vs. Chemical Const. Corp.; Connecticut vs. Teal; General Bldg. Contractors Assn., Inc. vs Pennsylvania; Crawford vs. Board of Education of City of Los Angeles; Washington vs. Seattle School District; Rogers vs. Lodge; NAACP vs. Claiborne Hardware Co.; Patsy vs, Florida; Ford Motor Co. vs. EEOC 1983: U.S. Postal Service Board vs. Aikens; Bob Jones University vs. U.S.; Guardians Assn. vs. Civil Service Commission of the City of New York; Chappell vs. Wallace 1984: Cooper vs. Federal Reserve Bank of Richmond; Hobby vs. U.S.: Allen vs. Wright; Palmore vs. Sidoti; Burnett vs. Grattan; Firefighters Local Union No. 1784 vs. Stotts 1985: Hunter vs. Underwood; NAACP vs. Hampton County 1986: Batson vs. Kentucky; Wygant vs. Jackson Board of Education; Bazemore vs. Friday; Local 28 of Sheet Metal Workers' International Assn. vs. EEOC; Thornburg vs. Gingles 1987: U.S. vs. Paradise; McCleskey vs. Kemp; Pleasant Grove vs. U.S. 1988: Watson vs. Fort Worth Bank and Trust 1989: City of Richmond vs. J.A. Croson Co.; Wards Cove Packing Co., Inc. vs. Atonio; Patterson vs. McLean Credit Union; Jett vs. Dallas Independent School District; Martin vs. Wilks 1990: Holland vs. Illinois; Metro Broadcasting, Inc. vs. FCC; Missouri vs. Jenkins; Spallone vs. U.S. 1991: Chisum vs. Roemer; Edmonson vs. Leesville Concrete Co.; Board of Education vs. Dowell; Powers vs. Ohio 1992: Georgia vs. McCollum; RAV vs. City of St. Paul, Minn.; U.S. vs. Fordice; Presley vs. Etowah County Commission; Freeman vs. Pitts 1993: Wisconsin vs. Mitchell; St. Mary's Honor Center vs. Hicks; Shaw vs. Reno 1994: Rivers vs. Roadwat Espress, Inc.; Landgraf vs. USI Film; Holder vs. Hall; Johnson vs. De Grandy 1995: U.S. vs. Hays; Miller vs. Johnson; Missouri vs. Jenkins; Purkett vs. Elem; Adarand Constructors, Inc. vs. Pena 1996: U.S. vs. Armstrong; Shaw vs. Hunt; Bush vs. Vera 1997: Reno vs. Bossier Parish School Board; Abrams vs. Johnson; Lawyer vs. Department of Justice

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