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A Force for Civil Rights Now Fights Them

March 26, 2000|Herman Schwartz | Herman Schwartz, a professor of constitutional law at American University, is the author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution."

WASHINGTON — Police mistreatment of blacks, Latinos and other racial minorities is a tragically old story. However, one significant though subtle factor has escaped attention: the indifference bordering on hostility that the U.S. Supreme Court has increasingly shown toward African Americans and other people of color in the last 15 years. Since Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor to make a solid conservative majority, they have consistently voted against these groups in almost every context.

This may come as a surprise to many. Between 1954 and 1985, the court provided the moral spur and the legal foundation eradicating the racial and ethnic repression that shamed our society's moral pretensions for nearly four centuries. Nonetheless, the Supreme Court today is one of the leading impediments to that effort.

The current court majority's most direct contribution to abusive police behavior toward minorities has been its criminal-justice decisions, which are superficially race neutral. The court's attitude is most evident, however, in cases dealing expressly with black issues. A good example is the recent 5-4 decision in a school-board voting case, Reno vs. Bossier Parish.

Bossier Parish, La., is about 20% black. In 1993, it had a 17.6% black voting population, and a 29% black school population. Nonetheless, no black had ever been elected to the 12-member school board. The parish has also fought every effort to desegregate its schools, even defying a 1965 court order to set up a biracial committee to "recommend . . . ways to attain . . . a unitary school system." The committee met only a few times, and no white member ever attended.

The 1990 school board had to reapportion itself, and, under Section 5 of the 1965 Voting Rights Act, it had to preclear all electoral changes with the Justice Department to ensure the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." In earlier cases, the Supreme Court explained that Section 5 was designed to enforce the 15th Amendment, which prohibits purposive discrimination, by preventing a jurisdiction "perpetuat[ing]" voting discrimination by "passing new discriminatory laws as the old ones were struck down."

That is not how Rehnquist and his allies view the law today. In January, they ruled that even if the Bossier Parish redistricting plan was adopted for the very purpose of keeping blacks from exercising political power, as long as the plan did not make things worse, the Justice Department had to clear it. If blacks had zero voting power before, despite their 17.6% of the voting population, a plan that intended to and had the effect of keeping them at zero had to be approved, even though a plan that would have resulted in two black members was readily available. A new lawsuit under a different section with a more difficult burden of proof would have to be filed, and unless and until that suit was resolved, which would be difficult and could take years, blacks would continue to have no board representation.

The majority opinion was written by Scalia, who has voted against minority litigants in almost every case during his 15 years on the court, except for those decided unanimously, or 8-1. Only Thomas matches that record. Scalia's opinion ignored or just dismissed the language of the Voting Rights Act in at least three previous cases and the clear intent of four Congresses. He conceded several times that in previous cases "we did give the purpose prong of Section 5" the meaning given it by minorities and the government. Indeed, Scalia had himself written in 1991, "intentional discrimination . . . is constitutionally prohibited, and the preclearance provision of Section 5 gives the government a method by which to prevent that."

Nonetheless, the decision comes as no surprise. Since April 1988, when Kennedy joined the court, the justices have decided some 40 race-related cases. Of these, 15 have been close--6-3 or 5-4; the others have been fairly clearcut, one way or the other. Of the 15, one 5-4 liberal victory was overturned. Of the remaining 14, minorities lost 11.

Since President George Bush appointed Thomas to succeed Justice Thurgood Marshall in 1992, racial minorities have fared even worse. From 1992 through January 2000, minorities won only nine out of some 26 cases, of which five were either unanimous or 8-1, and three were 7-2 (Scalia dissenting in all). Out of the 12 close cases (6-3 or 5-4) during this period, the conservative bloc has held together in all but one: Lawyer vs. Department of Justice, a 1997 5-4 voting-rights decision in which Rehnquist defected.

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