The Supreme Court’s race impatience

June 28, 2013


As Tuesday’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 Obama’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 we’re seeing from the Roberts Court’s recent race decisions, however, is an aggressive colorblindness, cloaked in hubris and federalism – or states’ rights. Working to do away with race at all costs, this colorblindness is administered through the court’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 majority’s many explicit references to “current ­­conditions” 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 majority’s view of “current conditions” suggests the Voting Rights Act’s work is done. Mission accomplished.

Yet this view of “current conditions” is anything but passive.  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 nation’s emerging majority of minorities

Not surprisingly, the conservative majority’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 “current changes” 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.  That tortured history reflects the whack-a-mole ingenuity with which African-American — and now Latino — voting has been thwarted.

In Tuesday’s decision, Shelby v. Holder, the court called the Voting Rights Act’s enforcement mechanisms an “extraordinary” 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 “pre-clear” any changes in their electoral rules with the federal government.  Under “current conditions,” according to the majority, this step is no longer justified and violated the principle of “equal sovereignty.”

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. Roberts’ 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 Act’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 court’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 shouldn’t.

First, the court has no solid constitutional ground to impose its impatience on Congress in this way. The Roberts majority disagreed with Congress’s voluminous findings and demanded more evidence of risks to minority voters. In her dissent, Justice Ruth Bader Ginsburg called this “hubris.”

As Justice Antonin Scalia wrote without irony in another decision Wednesday, “We 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.” 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 “language minority” voters? Whose rights are respected first — the states’ or the new voters’? And what if Congress decides it’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 “holistic review” 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 state’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 court’s impatient majority, demanding that the case be reconsidered to make sure that no “workable race-blind alternatives” 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 — that’s settled law. Nor is it to equate voting rights with equal protection — they’re analytically distinct. The point is to show the persistence of unjustified impatience with all things race by the court’s five conservative justices.

During the oral argument in Shelby, for example, Scalia referred to the Voting Rights Act as “perpetuating racial entitlement.” 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 court’s impatient mood, it functions less like an exacting stare and more like a hostile glare.

This week, the court’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 “disparate impact” — 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 “changed circumstances,” 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 “language minorities.” 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 university’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








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I always thought that in order for a system to be perfected, it had to be (color)blind. The author still promotes the idea that after record participation by minorities (in some areas exceeding the participation of whites, and 100% of the votes in a single precinct going to the President)in the last two national elections we are still “not there”. Is forty years not enough? If not, will 50 years be enough? If it is not time-sensitive, then what is it?

If the objective is to secure 100% parity across 300 million citizens and millions of square miles, that is statistically unachievable even if isolated to whites. You could not achieve parity between Chicago and Los Angeles regardless of the legislation you implemented. This ideology implies two factors that are blatantly false: (a) that members of a protected class (and particularly blacks, are less capable than others in registering to vote and (b) once registered, they are incapable of exercising that right (especially when one considers more states are using mail-in ballots). I think if you made that assertion to most blacks they would be insulted.

You will never, ever achieve parity should even one group secure a privilege not available to someone else. (Reference: the Univ of California discrimination against Asians). Privilege, in the name of fairness and equal access, perceived or otherwise, which the civil rights groups continue to demand, will only serve to further Balkanize our country.

If one looks hard enough you will always find shortcomings, because “fairness” is an extremely person issue. What is fair to one, is never fair to another. Even if you multiply that by the 13% of the population that is black, it still does not mean the unfairness is intended, nor systemic. One could make the same argument regarding people living at or below the poverty line. Do we create special legislation for them too? The statistics might support that agenda, but based on race, it too would not be colorblind.

Posted by COindependent | Report as abusive

The quote from Scalia was most revealing. On Tuesday when it came to race and the Voting Rights Act, Scalia (and especially Thomas) told us that it was well within the Court’s power to strike down a democratically adopted Act of Congress. But then on Wednesday when it came to DOMA they did a complete 180 saying that the Court has no power to strike down a democratically adopted Act of Congress.

So which one is it?

The Court’s conservative majority in Fisher and Shelby seem to think that we live in a post-racial society where nobody sees color and everybody starts on an equal playing field. If only such were the case.

If we want to talk facts, the Federal, State and local governments in the United States legally sanctioned slavery from the beginning of the Nation in 1789 until the adoption of the 13th Amendment in 1865 (I could go back much further than 1789 but since that is when the Constitution was adopted we’ll start the clock there for the sake of convenience). This is the UNITED STATES GOVERNMENT we’re talking about here, folks. Not some random group of private citizens. The Government. As in, the body that makes and enforces the laws for the entire country. After the 13th Amendment was passed, slavery was over but then the state and local governments continued to legally sanction Jim Crow segregation from 1865 until the Civil Rights Act of 1964. When you do the math, that’s 175 continuous years of government-backed racial discrimination against Blacks and other minorities in this country which legally classified Black people as property, legally prevented them from owning land, legally prevented them from receiving an education, and legally prevented them availing themselves of the political process. 175 years.

So when I hear racially impatient comments like the one above which ask “Is forty years not enough? If not, will 50 years be enough?” I have to ask how you can reasonably expect 40 or 50 years of government action to eradicate 175 years of government action?

Mathematically speaking, that would require the government’s impact towards Blacks and other minorities over the last 40 years to be 4 times as powerful as the impact that it had against Blacks during Jim Crow and Slavery. I won’t even pretend that Affirmative Action is perfect, but can we honestly say that over the past 40 years it has been 4 times as powerful as Slavery and Jim Crow were? Be honest.

Just because you might be tired of hearing about racial disparities in America doesn’t mean that you are entitled to put an expiration date on the discussion.

Posted by UrbanPolitico | Report as abusive

Continuation of our “civil rights” laws is an obscene extension of the old “Jim Crow” laws there were meant to reverse legitimate grievances of former slaves that had continued after the end of the Civil War in 1865, mainly in the South.

However, simply preventing the continuation of “Jim Crow” laws apparently wasn’t enough for some people, including the US Supreme Court (which in its history has had a track record of being wrong as many times as it has been right).

As they say, “the road to hell is paved with good intentions”, which was the original basis for implementing “reverse discrimination”, including “racial quotas” (i.e. “affirmative action”, which is blatant discimination by any other name) that were applied uniformly against those Americans living today who had nothing whatsoever to do with slavery or its result.

It was even applied in those states who had no history of slavery, AND perversely also in those states who contributed (white) troops to aid in suppressing slavery during the Civil War. How many white people died to free black slaves? That is a little fact that is never mentioned.

In any case, “Civil rights” legislation is a “zero sum” game for the American people — whoever they might be anymore, since now there are so many “pseudo-Americans” (for example, “Mexican-Americans”) here that we have lost track of who and what an “American” is supposed to be, or what we stand for as a nation. If you feel the need to be a “pseudo-American”, you don’t belong in my country. It is as simple as that!

This is especially true in the case of the massive numbers of Latinos who are here, legally and illegally, with NO such “moral” claim to special treatment under the law as do blacks. Neither they nor their ancesotors were slaves in this country. What the hell is the obtuse reasoning for granting THEM “special privileges” under the law as to education, employment or any other social services?

There are limits as to how much “civil rights” we can take as a nation and still survive. We have become a “Mecca” for those who wish to take advantage of our stupidly liberal laws that desperately need revision, if for no other reason than to assure the protection of our borders against anyone who wants to be here. In truth, we have NO idea how many “illegal aliens” are here.

The present net effect of this miscreant national angst of slavery is that the “core” beliefs of our white ancestors — the same ones who fought and died to free black slaves 150 years ago in the Civil War — have become a “threatened species” in this country that they supposedly fought to keep free.

What kind of “perverted logic” is driving this nation when illegal aliens receive better treatment under the laws than US citizens?

I would like to remind you of something the incumbent President Lincoln once said.


“A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become lawful in all the States, old as well as new — North as well as South.[1]”


It is incredibly sad to say we have now come “full circle” once again, after all the deaths, pain and suffering to the same exact place as a nation Lincoln described in 1858 — except this time it is white Americans who are the slaves in their own country.

The fact is that white Americans have become a minority in their own nation. We as a race are already suffering from the growing numbers of minorities in what used to be our country. It WILL continue to get much worse until whites have no rights at all — thanks to the voting power of our new “citizens”, most of whom do not like our culture, but like our liberal attitudes and “deep pockets” they use to advance themselves at our expense.

Perhaps this is really the goal of the new “slaveholders”, whose ultimate goal is to exact full revenge for what they perceive they are still “owed” by this nation. The fact they choose to present their case as being “common cause” with Latinos is pathetic beyond belief.

These two groups have NOTHING in “common” except a desire to drain our economy for their benefit alone. This is simply a case of “the enemy of my enemy is my friend”. The fact that their “common cause” will not last beyond the perceived “enemy” of the whites in this country will mattter little to those whites who are trapped in this country in the future.

How much longer are we to allow this massive scam by these people, this obscene diminution of OUR civil rights as white Americans in the name of “justice” to continue before we no longer have the ability to do anything about it?

Who will free US from slavery, as our ancestors did for the black slaves?

Posted by EconCassandra | Report as abusive

Actually there were six comments, but mine apparently conflicted with the censorship czar’s opinion, so it was removed. I guess Reuters reserves freedom of speech for themselves and those who agree with them.

Posted by JRTerrance | Report as abusive

I read the entire article (sadly) and thus conclude the Author is a racist.

/if you keep making decisions where a major component is race, then you are a racist.

Posted by VultureTX | Report as abusive

I wrote this reply to a person in another Reuters article who told me that my comment above was why we need to continue “Affirmative Action”.

I stand by what I said and I will take on anyone who chooses to differ with me, including Mr. Trout.


You have taken “cheap shots” at me previously. Clearly, it is you who have a race problem. I have said many times, I am not a racist, but a realist. What you want is racist, not realistic.

I was in the military when the Supreme Court ruled that segregated schools were unconstitutional, and I participated in some of the implementation of those orders. However, since then the Supreme Court has literally taken the law into its own hands, deciding that simple desegregation was not enough, but resitution had to be made.

At that point the Supreme Court basically threw out the entire Bill of Rights in favor of the 14th Amendment, which in effect denies ANY other citizen the rights guaranteed under the Constitution — many more than could possibly be mentioned in this venue — which is a usurpation and travesty of justice that is unequalled in this country’s history.

Since then, the Supreme Court has denied most of its citizens the right to equal justice under the law in the pursuit of “compensatory justice”.

And how has this “compensatory justice” been applied? By a blanket order depriving anyone who is not black to be the victim of discrimination by setting “racial quotas”.

And where are these victims? They are long dead. And where are the perpetrators of slavery? They are long dead. Has there been ANY effort whatsoever to link the “crime” with the victims of the crime? No. Instead, everyone who is not black has been summarily judged guilty of a crime they did not commit. Is there any rational compelling reason for the Supreme Court to apply punishment to an entire nation in such a manner? No. In fact, the US Constitution strictly forbids the government from taking such actions against its people.

What the Supreme Court has done is an obscene miscarriage of justice no matter how you look at it.

“Affirmative Action” REQUIRES discrimination against another group, which is wrong under the concept of equal justice for all under our Constitution.

It does not matter that the crime is heinous, which it was. It does not matter what “good intentions” the Supreme Court had in enacting this gross miscarriage of justice.

To arbitrarily deny a citizen of the US his/her rights under the Constitution without due process is WRONG.

To make matters worse, other “minority” groups have seized this opportunity to leverage what was done to the blacks in this country to get a “free ride”, which is ugly and deceitful because it denegrates the blacks who might still have reason for Affirmative Action. The blacks in this country deserve that hearing, but it is being turned into a circus by those who would benefit from their tragic years of slavery.

HOW can you possibly justify actions like that taken by people who have actually NO “common cause” with blacks?

To me, it is disgusting to see how the original good intentions by the Supreme Court to set things right have been so twisted and perverted by those who would use this tragedy of slavery to benefit from it.

Posted by EconCassandra | Report as abusive

No, EconCassandra, you ARE a racist.

Those rights you are having a tantrum over, (like the right to discriminate against black applicants to colleges) were taken away because certain jurisdictions proved to have no discipline when the country wasn’t looking, and like a fat kid with their hand in the cookie jar, thought of every creative excuse to continue their barely concealed hatred of the newly freed slaves. This continues up to today with asinine comments such as yours that explain that really, pointing out that racism is still rampant in the USA, is in fact racism.

No, Racism is racism, and you are a racist. When they look at achievement after college, there is no identifiable difference between affirmative action placements and their white peers, some of whom had much higher grades. It isn’t a matter of picking the “best” candidates, with some losing out. You can’t identify the marginally “best” until after college, because going is the best predictor of future success, not grades used for college placement. Those being ‘bumped’ because of affirmative action are largely marginal students who would not make it anyway. We will not be deprived of the next Steven Hawking because of bumping a c+ student to make way for a black student who never would have had a chance before.

Lifting a ban on racism is not racism, and yes I am white before you ask.

Posted by Benny27 | Report as abusive

Benny: I am going to take exception that just because someone has an opinion different than yours that they are a racist or some “phobe”. That’s a cheap shot that only serves to diminish your position. Stay on message and dispute his arguments without resorting to personal attacks.

Lastly, your race, much like that of the author, is immaterial to the conversation, and should not be used as a qualifier.

Posted by COindependent | Report as abusive

Frankly, depriving one person of their civil rights, or unequally diminishing those rights, on the basis of race is wrong. It is an act of volition — an act of deliberate will.

The test of this statement is whether a white citizen is entitled to equal treatment by the Government. What about a black citizen? Why does the black man have Government backed rights that the white man does not? The argument is that it is “racist” to not discriminate racially. Poppycock! It is “evil”. And if it is not, then there was never a wrong to correct in the first place.

If there is no equality before the law, then the country is intentionally and willfully racist. And that is certainly the case with the USA. And there is a loud and large lobby in favor of continuing racist laws. As long as they prevail, there will never be freedom in this land.

Posted by usagadfly | Report as abusive