With Monday’s affirmative action decision and Tuesday’s Voting Right Act case the Supreme Court has just about ended the second civil rights era in American history, paving the way for the second great disenfranchisement in American history. While the decisions were no surprise, they nonetheless tell us many things about race, class and power in American politics, and also about who the Supreme Court favors. . .and it is not the powerless and oppressed.
Consider first what the two decisions did. On Monday the Supreme issued a decision ruling that the use of race in admissions decisions for public colleges and universities is not permitted unless it survives strict scrutiny. What that decision means is that higher education must demonstrate a compelling reason why race should be used for admission decisions. Strict scrutiny is a high bar to jump, and effectively decision means that it will be very difficult to implement most affirmative action decisions that rely on race.
Tuesday’s decision affected perhaps the single most effective civil rights tool in American history–the Voting Rights Act. Passed in1965 and reauthorized several times, the act had several provisions. Some applied to all states and barred discriminatory practices that impeded minority voting rights. But Sections 4 and 5 were unique. Section 4 applied to certain states that had low voter registration and discriminatory practices in 1964. For those states that met the Section 4 criteria, any changes that they made in their voting procedures would have to be “precleared” by the US Justice Department before going in to effect.
The overall VRA was passed to overcome the history of discriminatory voting practices enacted in the South after the Civil War. As the Civil War ended Congress passed several civil rights acts along with the 13th, 14th, and 15th amendments. Collectively, this legislation was part of Reconstruction which sought to rebuild the South and promote Black equality. Yet Reconstruction ended in 1877 when federal troops were withdrawn from the South as part of a deal to end a presidential election standoff between Harrison and Tilden. When Reconstruction ended, southern states enacted all types of restrictive legislation to effectively re-enslave Blacks. We saw the emergence of separate but equal, but also laws aimed at preventing African-Americans from voting. These efforts included poll taxes, literacy tests, grandfather laws, and felon disenfranchisement laws. More extreme, the KKK burned crosses and lynched to make sure their message was understood. These laws were upheld by the courts and discrimination persisted in the South. After a brief flirtation during Reconstruction when many former slaves were elected to office or voted, the laws were a success–until the 1960s only a few percent of the African-American population could vote.
But a new civil rights era began with Rosa Parks, Martin Luther King, Jr., the Supreme Court decision Brown v. Board of Education of Topeka, Kansas, and the VRA. Civil rights heroes pushed the cause of equal rights onto the political agenda, President Johnson responded with the 1964 Civil Rights Act and the VRA, and the Supreme Court under Chief Justice Earl Warren upheld their constitutionality. The VRA has been powerfully successful in promoting civil rights for people of color and the act was subsequently reauthorized several times, most notably in 2007.
Here is the problem. The Act may be a victim of its own success. The original VRA was upheld by the courts based upon the evidence of discrimination that existed in the 1960s. But the South has changed in many ways since then when it comes to voting. The registration rates for Blacks is different now than 1964. But when the VRA was last reauthorized it was done so with congressional findings of fact from the 1960s and 1970s. Today’s Supreme Court decision struck the act down, arguing that the data used to define which states are subject to section 5 preclearance was out of date. Effectively, part of the VRA was declared unconstitutional.
Now Congress should not have been so sloppy in using old data to support the reauthorization of the VRA. But this Supreme Court cut them no slack. It ignored that minority voting rights had dramatically improved because of the VRA and because of the threat of pre-clearance. Without this threat, voter id, gerrymandering, and a host of new practices will go into effect that will chip away at voting rights. What we are about to see, as I described in 2008 William Mitchell Law Review Article, is the coming of the second great disenfranchisement in American history. We have already seen that effort in the last few years with voter id, long voting lines, and mythic claims of voter fraud.
But now couple the VRA case with the affirmative action decision. This is a Supreme Court that does not seem to recognize that racism continues to exist and that somehow we can live in a color-blind society. Yet racism does exist. We see it in housing discrimination and job discrimination. Wealth disparities across race exist as do disparities exist when it comes to arrests, racial profiling, and sentencing. We continue to live in two nations, separate and unequal, yet this Court fails to see that. Instead, its decisions, much like that of the Supreme Court after the Civil War, are gutting civil rights legislation. The Supreme Court of Justice Roberts is no friend of people of color. It is not the Supreme Court of Earl Warren, but of Melville Fuller who presided over much of the dismantling of the old Reconstruction and the ushering in of the Jim Crow and separate but equal era.
But like the Fuller Court, the Roberts Court is also unsympathetic to the oppressed in general. If the Fuller Court protected the rich and corporations by striking down legislation that sought to regulate trusts, the economy, and unfair working conditions, the Roberts Court has given corporations the free speech rights to make political expenditures. It has also made it hard to bring class action suit against them. Think about it–today’s Supreme Court decision gutting parts of the VRA that was meant to protect minority voting rights needs to read along side its Citizen’s United decision. More rights for corporations, less for people of color. One should also read these election law cases along side the affirmative action case. For those who think the use of class can substitute for race and affirmative action, the Supreme Court is building a body of law that insulates the haves against the have nots.
Overall, what we are learning from this Court is that it is closing the doors of justice to many and it seems to be on the road of creating a political system that is less equal for all, at least when it comes to race and class.