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O'Connor as a 'Centrist'? Not When Minorities Are Involved

April 12, 1998|Herman Schwartz | Herman Schwartz is a professor of constitutional law at American University and author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution."

WASHINGTON — White America seems bent on turning a blind eye to the many problems that nearly four centuries of racial injustice have created. Among those leading the way is Supreme Court Justice Sandra Day O'Connor.

To many academics and journalists, O'Connor is a moderate conservative, a "centrist." The Economist has described her as "having staked out the center on many of the great questions before the court." The Times has referred to her "distinct and carefully nuanced middle-ground positions" on various issues.

That may be true on some issues, but not when the civil rights of racial minorities are at issue. In decisions significantly affecting the efforts to fight racial discrimination and its effects, she has almost always voted against the racial minority in favor of the white majority, except where the Supreme Court is unanimous or near-unanimous. For example, despite her constant rhetoric about sometimes allowing "race-based-action [if] neces- sary to further a compelling interest" (which led one commentator to refer to her as "groping for an intermediate, subtle fine-grained position [on] the affirmative action problem"), she never has voted to allow a specific affirmative action plan for blacks or other minorities.

She has, in fact, been the court's leader in its assault on racially oriented affirmative action. Her underlying premise in these cases seems to be that a temporary preference designed to help a relative handful of racial minorities overcome the damage inflicted by centuries of brutal subjugation and discrimination is to be treated as if it were just as immoral as the laws that perpetrated that brutalization, a position openly espoused by Justice Clarence Thomas. The irony, of course, is that she and Thomas are the outstanding examples of affirmative action in recent history.

To analyze her record, a computer search of her votes on cases involving racial minorities since 1981-82, her first term, was made, supplemented by a search through the annual Supreme Court surveys by United States Law Week. This analysis discloses that in the 16 full years that O'Connor has been on the court, it has decided some 67 cases dealing directly and specifically with the rights of racial minorities (treating multiple cases with the same issue as one). Of these, 26 cases were decided either unanimously (13), by 8-1 (5) or by 7-2 (8), with 41 sharply split racial decisions.

Putting aside for the moment the 26 decisions decided by unanimous, 8-1 or 7-2 votes, where she voted for minorities 16 times, 11 in the 13 unanimous cases, of which seven were in her first five years, O'Connor has voted against the minority litigant in all but two of the 41 close cases involving race.

These cases have dealt with almost every legal issue related to racial justice, including voting rights, employment, school desegregation, affirmative action, the scope of enforcement for federal civil rights statutes, jury selection and capital punishment. In these cases, she often has ignored or repudiated her own prior rulings against civil rights claimants, racial and otherwise, on access to the courts and on federal power.

For example:

* In 1996, she joined a William H. Rehnquist opinion, following an earlier path-breaking decision she authored in 1993, in which the court struck down an electoral districting plan designed to facilitate the election of two black representatives out of 12 from North Carolina, a state that had not had any black representative since Reconstruction and which was approximately 20% black (Shaw vs. Hunt; Shaw vs. Reno).

* In 1989, she joined a series of employment-discrimination decisions which, among other things, read a civil rights statute as not including racial discrimination in promotions, and made it more difficult to prove racial discrimination in employment (Patterson vs. McLean Credit Union; Wards Cove Packing Co. Inc. vs. Atonio), both subsequently overturned by Congress.

* In three cases in 1990, 1991 and 1995, she voted to relieve school districts of the obligation to desegregate--though both the fact and effects of segregation were still present (Missouri vs. Jenkins; Freeman vs. Pitts; Missouri vs. Jenkins).

* In 1987, she joined a 5-4 majority that voted to ignore strong statistical evidence of racial discrimination in capital cases, including evidence that black defendants were more likely to receive the death penalty than others (McCleskey vs. Kemp).

The sole exceptions to this pattern were when she was part of a 6-3 majority ruling, in 1982, that the at-large election system for a Georgia County Board of Commissioners violated equal protection (Rogers vs. Lodge), and in 1991, that state judges are covered by the ban on vote dilution of Section 2 of the Voting Rights Act (Chisum vs. Roemer).

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