The Supreme Court’s race impatience
As Tuesdayâ€™s decision gutting the heart of the Voting Rights Act made clear, it is June and a slim conservative majority of Supreme Court justices is again impatient with race.
Judging from President Barack Obamaâ€™s initial tepid, nonracial reaction, the first black president — whose reelection hinged in part on an expanded minority voting base — is impatient with the Supreme Court, race or both. And Congress is, well, stuck on Congress.
What weâ€™re seeing from the Roberts Courtâ€™s recent race decisions, however, is an aggressive colorblindness, cloaked in hubris and federalism â€“ or statesâ€™ rights. Working to do away with race at all costs, this colorblindness is administered through the courtâ€™s growing demands that any civil rights remedy be tailored with a narrowness approaching oblivion.
The newest wrinkle to this ideological impatience is the conservative majorityâ€™s many explicit references to â€ścurrent ÂÂconditionsâ€ť and their double meanings in our racial politics. Alternating between sanguine — acknowledging the increasing number of minority registered voters and office holders — and salty — chiding Congress for failing to take these new realities into account — the majorityâ€™s view of â€ścurrent conditionsâ€ť suggests the Voting Rights Actâ€™s work is done. Mission accomplished.
Yet this view of â€ścurrent conditionsâ€ť is anything but passive.Â It represents an extremely active and aggressive impatience with the realities of race that can provide rhetorical cover for new legal strategies that impede the electoral potential of our nationâ€™s emerging majority of minorities
Not surprisingly, the conservative majorityâ€™s no-longer-so-colorblind approach appears in several civil rights contexts at once — voting rights, university admissions, employment discrimination and, next year, housing. After all, everyone has a stake in civil rights.
For conservatives, these are critical arenas for the preservation of economic advantage and political say. So â€ścurrent changesâ€ť may threaten encroachment by people deemed foreign, irresponsible or unworthy. For blacks and other nonwhites — some of whom may also be economically disadvantaged — these involve basic democratic values. It can mean access to middle-class lives, greater voice in the public debate and increased political participation.
These are the values that were always at risk in the voting rights context, from the passage of the 15th Amendment after the Civil War to passage of the Voting Rights Act that finally enforced its terms 100years later.Â That tortured history reflects the whack-a-mole ingenuity with which African-American â€” and now Latino â€” voting has been thwarted.
In Tuesdayâ€™s decision, Shelby v. Holder, the court called the Voting Rights Actâ€™s enforcement mechanisms an â€śextraordinaryâ€ť measure of discrimination by the federal government against a few states. Under the act, states with histories of voter suppression as bad as Shelby County, Alabama, had to â€śpre-clearâ€ť any changes in their electoral rules with the federal government.Â Under â€ścurrent conditions,â€ť according to the majority, this step is no longer justified and violated the principle of â€śequal sovereignty.â€ť
The problem is that Congress had reauthorized the prohibitions on voting suppression as recently as 2006, but not the formula used for deciding which jurisdictions were subject to federal oversight. Robertsâ€™ decision indicated impatience with Congress for not updating the formula four years ago.
The Roberts Court saves this kind of impatience for matters of racial equality. After all, Congress is a co-equal branch of government, charged with passing these laws. It is typically entitled to deference from the Supreme Court — as long as there is a rational basis for its actions.
The reauthorization of the Voting Rights Act followed 21 hearings over many months in both the House and Senate, compiled in a 15,000-page record. That was its basis, but that was not narrowly tailored enough for the Court.
Roberts wrote that the decision only gutted the heart of the Voting Rights Actâ€™s enforcement power until Congress rewrites the formula. Agreeing on a new formula, however, is unlikely because this polarized Congress is, well, stuck being Congress.
In the meantime, people who suspect their right to vote is being diluted by gerrymandered districts or suppressed by arduous voter ID laws can file their own lawsuits. Hours after the courtâ€™s decision, Texas passed just such laws and invited lawsuits that will take years to resolve — assuming local groups can afford them.
It would be tempting to accept the idea that a lot has changed in the United States when it comes to voting discrimination. But to do so, we would have to forget hanging chads and ballot irregularities in Florida in 2000, electronic voting machine litigation in the meantime and the many attempts at minority vote suppression in 2012. If we did, then the Shelby decision seems like just a technical correction to get Congress to do its math homework. For several crucial reasons, however, we shouldnâ€™t.
First, the court has no solid constitutional ground to impose its impatience on Congress in this way. The Roberts majority disagreed with Congressâ€™s voluminous findings and demanded more evidence of risks to minority voters. In her dissent, Justice Ruth Bader Ginsburg called this â€śhubris.â€ť
As Justice Antonin Scalia wrote without irony in another decision Wednesday, â€śWe have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.â€ť Exactly. But that case — the historic overturning of the Defense of Marriage Act — did not involve race.
Second, the majority justified its impatience on questionable grounds that conservative justices have been harvesting for years: the principle of equal sovereignty. Under this federalist argument, states have the right to be treated alike by Congress. It is as if they were people with a right not to be discriminated against.
But what if the states — through state laws or the practices of local election officials — discriminate against the sudden influx of â€ślanguage minorityâ€ť voters? Whose rights are respected first — the statesâ€™ or the new votersâ€™? And what if Congress decides itâ€™s the voters? The separation of powers doctrine tells the court to stand down. Yet the equal sovereignty principle now allows the court to step in — as long as the matter involves race.
In deciding Fisher v. Texas on Monday, the conservative majority demonstrated a similar impatience with race when it comes to university admissions. The University of Texas was sued for using a â€śholistic reviewâ€ť system for selecting roughly a quarter of its freshman class. The rest of its class was assembled by using the top 10 percent of graduates from the stateâ€™s public high schools, which ensured a certain broad diversity. But the university decided it needed to take into account other factors — including race — to achieve more of the educational benefits of diversity, a constitutional interest.
Even this was not enough, said the courtâ€™s impatient majority, demanding that the case be reconsidered to make sure that no â€śworkable race-blind alternativesâ€ť could achieve the desired diversity before the university used race as an admissions factor. In other words, the court demanded more evidence of the narrowest tailoring.
The point here is not to prove the educational benefits of diversity — thatâ€™s settled law. Nor is it to equate voting rights with equal protection — theyâ€™re analytically distinct. The point is to show the persistence of unjustified impatience with all things race by the courtâ€™s five conservative justices.
During the oral argument in Shelby, for example, Scalia referred to the Voting Rights Act as â€śperpetuating racial entitlement.â€ť Justice Clarence Thomas would have voted to nullify even more of the Voting Rights Act and to ban any use of race in college admissions.
Strict scrutiny with regard to race-conscious policies was always the most stringent standard with good reason. But given this courtâ€™s impatient mood, it functions less like an exacting stare and more like a hostile glare.
This week, the courtâ€™s five-member conservative majority also limited Title VII protections against race discrimination in the workplace, making these cases harder and costlier to bring. In one decision, Vance v. Ball State University, the justices narrowed the definition of a supervisor for the purposes of determining whose discriminatory acts may be attributable to the employer — which, in the modern workplace, may put a lot of conduct beyond the practical reach of law. In the other ruling, University of Texas Southwestern Medical Center v. Nassar, the court made it harder to prove retaliation claims.
Two weeks ago, the Supreme Court agreed to hear another civil rights case — this one involving the Fair Housing Act, a pillar of 1960s civil rights legislation.
Racial discrimination in housing can be harder to prove since the intention to exclude is easily masked by institutional practice. The Fair Housing Act recognized this by allowing plaintiffs to show bias through evidence of â€śdisparate impactâ€ť — or disproportionately harmful results not explainable by chance. There is no dispute about this among the circuit courts. Nonetheless, the Supreme Court has decided to review this practice next term.
If Roberts and the other conservative justices are correct about â€śchanged circumstances,â€ť the interest in racial equality has nothing to fear from this expressed judicial impatience with race-conscious remedies. Conditions are certainly changing — but equality is no less at risk.
When Congress reauthorized the Voting Rights Act in 2006, it also expanded protections, with specific concerns for â€ślanguage minorities.â€ť Sure enough, the 2012 election was rife with voter suppression initiatives around the country that many assume may have boosted minority turnout. In any event, the Latino population of Alabama, a state subject to federal oversight on election law, increased 145 percent between 2000 and 2010, according to the U.S. Census. Others states subject to federal oversight, including Louisiana, Mississippi and South Carolina, experienced Latino population increases, respectively, of 79 percent, 106 percent and 148 percent. Georgia had an almost 100 percent increase, more than 400,000 new Latino residents.
These shifting demographics suggest many things about the potential for access, voice and political participation — even if they represent threats to others. But the numbers do not yet reflect opportunity.
Employment is strongly correlated with education, income and wealth — hallmarks of opportunity. Poverty is symptomatic of its lack. Consider, in Alabama, Louisiana, Georgia, Mississippi and South Carolina last year, African-American unemployment rates were at least twice the rate for whites, sometimes far more, according to the National Journal. The same report found the Latino unemployment rate in Georgia to be 11.3 percent– compared to 6.3 percent for whites. Similar disparities hold for poverty. According to the Census, poverty rates for blacks in the same five Southern states were at least twice the rates for whites — three times the rate in Mississippi
And in Texas, the universityâ€™s primary means of selecting freshmen –which the court finds constitutionally permissible — rests entirely on stubborn patterns of racial and ethnic segregation in local schools.
These racial disparities are complex and this is but a sketch. Yet they indicate that many important by-products of our democratic values have yet to reach the intended beneficiaries of our civil rights laws. Meanwhile, the non-white population is rapidly increasing.
As our demographics shift across the country — that is, as conditions change — the competition for resources risks becoming more intense. This is precisely when our civil rights laws should work as a guarantor — not an adversary — of our values.
ILLUSTRATION (Insert A): Matt Mahurin
PHOTO (Insert B):Chief Justice-nominee John Roberts answers a question on the last day of his public testimony at his Senate Judiciary Committee confirmation hearings on Capitol Hill in Washington, Sept. 15, 2005. REUTERS/Jason Reed JIR/DY
PHTOT (Insert C): Supreme Court in Washington. REUTERS