Preview of 1995 Court Term: Racial Equality

James E. Fergurson II, General Counsel ACLU

September 27, 1995

In a trilogy of cases decided last term, a slim majority of the Supreme Court turned a blind eye toward the intractable problem of racism and race discrimination and abandoned any pretense of judicial restraint in its effort to curtail the Court's long-recognized responsibility for enforcing the protections of the Fourteenth and Fifteenth Amendments. In Adarand Constructors v. Pena, the Court, casting aside principles of stare decisis, overruled its 1990 decision in Metro Broadcasting and imposed strict scrutiny for racial classifications in federal programs designed to benefit minorities, as well as for programs that might discriminate against them. In Missouri v. Jenkins, the Court invalidated school desegregation orders in a decision that seemed to elevate eliminating the federal court's role in desegregation over eliminating the vestiges of unconstitutional state-ordered segregation. Finally, in Johnson v. Miller, the Georgia redistricting case, the Court lashed out at the Justice Department's enforcement of the Voting Rights Act and made the extraordinary statement that it is "offensive and demeaning" to minority voters when a state attempts to draw election districts that comply with the Act's command to give minority voters an equal opportunity to participate in the political process and to elect candidates of their choice.

This majority's zeal to assert its skepticism, if not hostility, to laws designed to remedy the effects of racial discrimination is evidenced by its unabashed judicial activism. The Court was so eager to invalidate the school desegregation orders in the Kansas City case that it reached out to answer a question that was not presented, indeed a question which it earlier refused to take -- the broad foundational question of the legitimacy of the district's magnet school concept. In Johnson, some of the Court's most vocal proponents of federal deference to the acts of state governments seemed totally unconcerned that relaxing standards for private citizens to challenge redistricting plans effectively gives lower federal courts roving warrants to second-guess the difficult political choices made by state legislators. Furthermore, in Johnson, the proponents of Chevron deference to federal agency decisions, particularly those favoring established interests, now have said it would be "inappropriate" to accord deference to the Justice Department's interpretation of its obligations under the Voting Rights Act. All of this leads to the conclusion that the conservative majority's use of judicial restraint is conveniently selective, especially in matters of racism and race discrimination.

The nation has reason to be alarmed by this Supreme Court majority's apparent hostility to remedies for racial discrimination particularly at a time when racism seems clearly in the rise. Yet, there is hope. It may be that the Court's racial bark is worse than its bite. It is clear that these justices would like to wish away racial issues by simply saying "time's up" for any efforts to remedy the effects of past and present discrimination. But we have seen this before. Just 20 years after the Emancipation Proclamation, the Supreme Court said that there comes a time when those once in slavery have to cease seeking the special favor of the law. But the nation and the Court have gone on to make great strides toward racial equality, and that progress will continue.

Moreover, these three decisions, upon close analysis may not be as far-reaching as some of their rhetoric suggests. In Adarand, Justice O'Connor, who provided the fifth vote for the majority, insisted that the "Government is not disqualified from acting in response" to the country's legacy of racial discrimination and that strict scrutiny is not necessarily "fatal." We should take Justice O'Connor at her word. In Missouri v. Jenkins, the Court invalidated a school desegregation program that may well be the most ambitious in the nation. Its 5-4 decision attacking the scope of that program may not have as much practical effect for ongoing school desegregation efforts in other districts.

Nor is there any reason to believe that Johnson created insurmountable hurdles to the creation of majority-minority districts. The scope of Johnson, and its predecessor, Shaw v. Reno, will become clearer in the upcoming Term, as the Court again looks at the North Carolina district at issue in Shaw, as well as majority-minority districts in Texas. Both law and the facts favor upholding these districts.

First, we look at law. The Johnson Court made clear that the irregular shape of a district raises not on a rebuttable presumption that race was the predominant factor in drawing the district, subordinating all other redistricting principles. Even if a district's shape gets challengers into the courthouse, they still must prove that race crowded out every other consideration, including party membership, compactness, and preserving communities of interest or incumbents' districts. Given the intensely political nature of redistricting, this rarely will be the case. Second, the Court has long held that partisan gerrymandering does not violate the Constitution; so to the extent that line-drawing is intended to preserve one party's incumbents or to create hospitable districts for its candidates, it does not violate the Equal Protection Clause. Because race can often be used to describe a politically cohesive community of interest, its use in the partisan political process of redistricting is not unconstitutional, even after Johnson so long as there is no evidence that the voting strength of particular groups has been unfairly diluted. Third, as Justice O'Connor recognized, the standard for challenging a majority-minority district remains a "demanding one." This is because, in Justice O'Connor's words: "the driving force behind the Fourteenth Amendment was the desire to end legal discrimination against blacks." It would be shocking indeed for the Court to hold that voters who affiliate along racial lines can be treated differently -- and less favorably -- than voters who affiliate on the basis of other shared characteristics.

Finally, the Court will have to balance its receptivity to challenges to majority-minority districts against the need for orderly state and federal elections. It is not likely to make the standards for race-conscious redistricting so exacting and finely calibrated that every majority-minority district invites litigation. Otherwise, the ten years between each reapportionment would be spent litigating and redrawing the lines from the previous one. This would be an unwise use of the federal courts' resources and a prescription for chaos in state legislatures.

The two voting rights cases to be heard this Term, Vera v. Richards and Shaw v. Hunt, come with records that show the complexity of redistricting factors. In the Texas case, white voters challenge a majority-minority district in Dallas. It is a relatively compact, urban district that has united neighborhoods and actual communities of interest. Where it does reach out to pull in some suburban minority voters, this is purely a partisan gerrymander. Due to a shortage of Democratic votes in downtown Dallas, the district was forced toward the suburbs so that a Democratic incumbent could claim more of the urban Democrats. In any event, the resulting majority-minority district still comfortably meets traditional Texas notions of regularity and compactness; it is not unlike districts drawn to protect the state's incumbents.

Although the challenged 12th District in North Carolina admittedly is neither regular nor compact, its shape is attributable not so much to race as to partisan politics, incumbent protection and regional interests. The district is elongated in large part because it was squeezed in among the districts of Democratic incumbents whom the legislature sought to protect. The extent to which race and politics overlap here is illustrated by the fact that the North Carolina Republicans who lost a political gerrymandering case have now reappeared as intervenors in Shaw. Moreover, the district conforms to the traditional redistricting principle of uniting communities of interest, since it brings together the urban districts of the Piedmont.

In sum, the conservative majority of the Court did not slam the door on governmental efforts to end race discrimination and to eliminate its vestiges. Such efforts are still needed, as a colorblind society is yet an aspiration, not a reality. There is still a racial imbalance in federal contracting, and affirmative action must continue to be one of our tools for redressing that imbalance. Minority voters and political candidates made great strides in recent years, and the Voting Rights Act enforcement is needed to preserve those gains. To this day, the effects of the official segregation of schools still limit many a child's chance to learn, and they need court orders directing the official wrongdoers to remedy those ills.

To borrow from Justice Ginsberg's opinion in Jenkins, after "two hundred years of firmly entrenched official discrimination," this nation's recent efforts to make racial equality a reality are "evanescent." To abandon those efforts would be "an action at once too swift and too soon." It is an action that I do not believe a majority of the justices is ready to take. Just as the Court has chipped away at, but never abandoned Roe v. Wade's recognition of a woman's right to choose, neither will the Court sound the death knell for government's role in enforcing racial equality.