In the districting cases, the white plaintiffs did not even claim that their voting rights had been injured but only that the legislature had sent a message that "there were black districts and white districts." Under current law, this is clearly inadequate. Nonetheless, the majority fashioned a special rule allowing the white voters to sue.
The dual premise underlying the court's decisions is that racial measures designed to help minorities are to be viewed with the same strict scrutiny as those designed to hurt them, and that "racial stereotypes" that treat people as if their "political identity is predominantly racial" are constitutionally unacceptable.
Neither proposition is tenable. Courts view racial classifications with strict scrutiny because there is a well-founded fear that racial prejudice against minorities is at work and the minority is usually too politically weak to overcome it. That has no relevance to preferences given to minorities in order to help them overcome centuries of prejudice, oppression and discrimination--even if the preferences may incidentally harm whites.
Moreover, to deny that race plays a major role in how people vote is to make colorblindness an excuse for a deliberate refusal to see. Even Justice Sandra Day O'Connor acknowledged that both the long history of Southern voting discrimination and recent court rulings showed "racial polarization that candidates preferred by African American votes were consistently defeated." But unless the remedy incorporates "sound" districting principles and reflects "the racial group's residential patterns," she would not let it stand. Yet nothing in the Constitution mandates "sound" districting principles or adherence to residential patterns.
In a separate opinion, O'Connor added her now almost routine teaser that, in some cases, she would accept some majority-minority districting. One will search in vain, however, for more than a few scattered decisions in her 15 years on the court where she voted for a black victim of discrimination.
These voting rights decisions will drastically shrink minority representation in Congress, and weaken efforts to protect the poor and the weak. They can only worsen black political apathy and bitterness--especially since they are only the most recent in a nearly unbroken pattern of close decisions against minorities that began in 1988, when conservative Justice Anthony Kennedy joined this court.
In 1989, for example, the court issued a set of decisions sharply limiting the ability of minorities and others to win suits under Title VII of the Civil Rights Act, which bars discrimination in employment. The decisions were so egregious that Congress overwhelmingly overturned them all in 1991. Despite the slap on the wrist, the court continued is assault on Title VII with decisions in 1993 and 1994.
Also in 1989, the court reversed its decade-long support for affirmative action by striking down Richmond, Va.'s program setting aside a small percentage of government contracts for minorities. The decision virtually doomed 36 state and 199 local minority set-aside programs. The other shoe dropped last year, when the ruling was extended to federal contracts. The irony is that O'Connor and Justice Clarence Thomas, two of the most vociferous critics of affirmative action, can be viewed as its two most prominent beneficiaries.
School desegregation efforts have also been hit hard. Rulings in cases from Atlanta (1991), Oklahoma City (1992) and Kansas City (1990) have urged the federal courts to abandon their desegregation effort, despite the increasing racial isolation in America's schools.
In 1952, William H. Rehnquist, then a law clerk to Justice Robert H. Jackson, wrote the justice during deliberations on the school segregation cases, "I think Plessy vs. Ferguson was right and should be reaffirmed." He lost then--but as chief justice may finally have gotten his way.*