United States | November 17, 2009 at 1:50 am

Blind Justice?

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The Supreme Court’s decisions last term reveal a trend toward color-blindness

Two cases decided by the Supreme Court earlier this year demonstrate an ongoing, if cautious, conservative march towards a new constitutional order with regards to race. In the case of Ricci v. Destefano, a divided Court ruled that it was unconstitutional to throw out the results of a promotion exam in which white firefighters had systematically outperformed minority candidates. In Northwest Austin Municipal Utility District v. Holder, an eight-Justice majority refrained from ruling on the constitutionality of Section 5 of the Voting Rights Act, which requires that voting districts in historically segregated states get Justice Department approval for changes in election procedures, but did exempt the district that brought the case from that requirement.

These decisions and the accompanying oral arguments demonstrate a trend towards constitutional color-blindness, a philosophy summed up by Chief Justice John Roberts’ statement in a 2007 school-integration case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, despite the absolutism of this philosophy, the conservative majority seems wary of moving too fast on racial issues, and instead opts to address racial discrimination on a case-by-case basis. In so doing, the Court seems to be deciding race-based cases to avoid what it sees as discrimination in specific situations, without extending its rulings to combat race-based judgments at a constitutional or society-wide level.

Color-blindness vs. Substantive Equality

There are two competing ways of interpreting the Constitution’s requirements on racial issues. Harvard Law School professor Richard Fallon explained that, under the color-blind interpretation, the Constitution “makes it strongly presumptively impermissible for the government to take race into account for any purpose.” On the liberal account, the Constitution permits governments to “take race into account for the purposes of achieving substantive equality in the U.S. across or between races.” Decisions of the Warren Court in the 1950s and ’60s tended to embody the latter justification, but the Roberts Court is moving steadily toward the former. Professor Morton Horwitz of Harvard Law School told the HPR that the Supreme Court is “dangerously close to declaring all race-based hiring by public entities unconstitutional.”

Reasons for Caution

Although the Supreme Court clearly has moved toward color-blindness in individual decisions, the Justices have stopped short of addressing the constitutionality of laws like the Voting Rights Act and legal precedents regarding segregation. According to Fallon, these laws embody the “social and political progress that the United States made in the ’50s and ’60s.” The historical and cultural significance of this legislation may be shielding it from the Supreme Court’s conservatives.

Furthermore, the Court’s hesitance to address racial issues on a constitutional level mirrors its general preference for rulings based on statutory rather than constitutional interpretation. As Roberts wrote in his majority opinion in the Voting Rights Act case, “Our usual practice is to avoid the unnecessary resolution of constitutional questions.” Abigail Thernstrom of the Manhattan Institute told the HPR that Roberts has indicated his receptiveness to a case that would allow the Court to rule on race-related constitutional issues. This willingness, however, is negated by the Court’s cautious attitude toward civil rights legislation, which means that the Court will likely avoid resolving broad constitutional questions whenever it can instead address limited statutory issues. Still, Harvard Law School professor Mark Tushnet believes that slow moves are not necessarily unimportant ones: “I think that the Justices want to move incrementally, step-by-step … towards the goal of adopting this rule against using race in any way,” he told the HPR.

The Future of Race Relations

The Roberts Court’s tendency to walk a fine line between its preference for color-blindness and its unwillingness to declare major civil rights legislation unconstitutional is likely the result of what Thernstrom called a “very precarious balance” between the Court’s liberals and conservatives. However, Justice Sotomayor’s appointment to the Court may change this balance, according to George Washington University law professor Jeffrey Rosen. Rosen told the HPR, “In the past, Justice [Clarence] Thomas has said that he is the only person on the Court who has experienced affirmative action, and he has found it stigmatizing and thus struck it down.” If Justice Sotomayor makes a similarly personal case for a substantive-equality interpretation of the Constitution, it may be enough to stem the conservative tide a little longer. On the Court, Tushnet said, “a lot turns on personal dynamics.”

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