Between now and the end of June, the US Supreme Court will likely hand down two landmark decisions on the most historically difficult and contentious of all social, economic and political questions facing the US: the relationship between whites and blacks. In Fisher v. University of Texas, the Court will decide what role, if any, race can play in the admissions process of colleges and universities. In Shelby County v. Holder, the Court will decide whether the US Congress still has the power under Section 5 of the Voting Rights Act (VRA) to require certain states and counties to obtain federal permission before changing their electoral systems. It is not an overstatement to say that how the Court rules in these two cases may slow down the progress towards racial equality for a generation. It is not an overstatement because the Court has made this mistake several times before.
Unlike the last landmark case decided by the Court (the Affordable Care Act litigation), there is no suspense as to how four of the conservative justices are going to vote in the affirmative action case because they have already told us. In 2007, Chief Justice Roberts, writing for Justices Antonin Scalia, Clarence Thomas and Samuel Alito in Parents Involved v. Seattle School District, displayed complete hostility towards racial preferences concluding that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." To these justices, the Constitution requires us to act as if we live in a colorblind world, whether we do so or not. There is little doubt that all four justices wanted to end all affirmative action, and they likely would have done so but for the separate opinion of Justice Anthony Kennedy. Although agreeing that the specific racial balancing used in that case was unconstitutional, he wrote a more moderate opinion suggesting that some use of race in admissions may be permissible. His opinion, because it was the narrowest ground upon which five justices agreed, became the binding opinion of the Court. Assuming that the four moderate justices vote in favor of the limited use of racial preferences adopted by the University of Texas, the decision on the validity of affirmative action nationwide will come down to Kennedy.
The last time the VRA came before the Court, the justices (other than Thomas) decided the case on narrow grounds while avoiding the constitutional issues. Nevertheless, Roberts' opinion in that case suggested skepticism about Section 5, and at the recent oral argument the conservatives appeared poised to strike it down (though Thomas, of course, was silent). Again, Kennedy is likely to be the swing vote in the case.
The practical implications of these cases are extremely important. The Court may well decree the end of racial preferences in colleges and universities while at the same time allowing states and cities with long and sordid histories of voter discrimination to be free from federal supervision. But, equally importantly, should the Court rule against affirmative action and the VRA, the justices would be sending a strong message that the US has achieved enough racial progress to delegitimize aggressive legislative and other political action designed to remedy racial disparities in this country. Given that blacks are incarcerated at nearly six times the rate of whites, that on average whites have twenty times the wealth of blacks, and that blacks graduate college 20 percent less than whites, the argument that we have achieved significant racial equality in this country is frivolous. Moreover, the 2012 elections involved numerous efforts by Republicans to dampen black voter turnout, some of which courts overruled under Section 5. Yes, we have made progress, but we have a long way to go.
If Kennedy were to examine history when making his decision, he would see that when the Court prevents Congress from enforcing laws designed to assist African-Americans or when the Court rubber stamps overtly discriminatory efforts by the states, the result in virtually every case has been a disaster. The judicial invalidation of congressional attempts to end slavery in the territories in the 1850's was a significant contributing factor to the Civil War. Many believe that the Dred Scott case is a permanent stain on the legacy of the Court.
The Court's overruling of Congress' attempt to eliminate racial discrimination in hotels and restaurants in 1875 coupled with the Court's affirmation in Plessy v. Ferguson of the "separate but equal" doctrine led to generations of Jim Crow and the further marginalization of blacks in the US. This damage lasted at least until the 1960's and both cases are also viewed as blots on the Court's reputation. And, although the laws at issue didn't directly affect race, the Court's early efforts to block US President Franklin Delano Roosevelt's New Deal programs (programs that would have helped the poor) led to a constitutional crisis and the infamous court-packing plan. In all of these examples, the Court stopped Congress from using its legislative power to assist traditionally disadvantaged groups, and in each case the Court hurt its historical legacy.
It is not the Court's job to help white majorities with voting power and influence win battles they lost in other political arenas. If the people of Texas don't want its flagship university to use racial preferences in admissions, they can put people in power who won't adopt such preferences. If the people of the US think the VRA has outlived its usefulness, they can elect people to Congress who will repeal the law. The Fourteenth and Fifteenth Amendments give Congress the power to enforce those provisions and were enacted to give Congress tools to move us closer to racial equality. For the Supreme Court to interpret those amendments to limit legislative efforts to help people of color is nothing short of perverse.
During the oral argument of the VRA, Scalia and Roberts gave the game away. Scalia made the preposterous argument that the Senate's 98-0 vote in favor of the act in 2006, rather than showing unanimous belief that the VRA was still needed, actually showed the Senate was too cowardly to take the problem seriously. Scalia made this claim despite congressional hearings and reports on the issue. He also called the VRA a "racial entitlement." Clearly, Scalia is opposed on policy grounds to the Act's attempt to further erase our sorry history of racial discrimination.
Roberts asked the lawyer for the government whether he thought the South is more racist than the North, as if that loaded question decided the case. His vote seems certain, and Thomas is already on record as saying that Section 5 is unconstitutional. No doubt Alito agrees. Hopefully, Kennedy will better understand that the Supreme Court should not second guess rational decisions of other public officials trying to remedy racial inequality, and like he did in the last affirmative action case, not join with the other four conservatives who want to pretend as if racial discrimination and racial inequity no longer exist. The march towards a true colorblind society will move far quicker if Kennedy does his job correctly.
Eric Segall is a professor of law at Georgia State University College of Law where he teaches federal courts and constitutional law. He is the author of the book Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges.
Suggested citation: Eric Segall, Fisher and Shelby County: A Colorblind Court in a Non-Colorblind World, JURIST - Forum, Apr. 11, 2013, http://jurist.org/forum/2013/04/eric-segall-color-blind.php
This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org