UNCLE THOMAS STRIKES BACK : RACE IN THE ROBERTS ERA

SUPREME COURT FOLLIES

With each passing year, my faith in the United States Supreme Court dwindles. When I studied law, I respected the Supreme Court’s work. I had respect for the Supreme Court because it largely made decisions that attempted to redress historical wrongs in the United States. In so doing, the Court sided with individuals against the Government and expanded individual liberty against contemporary oppression. But my respect for the Court began to sour as I read more recent decisions. Beginning in the 1970s and 1980s, the Court began to dismantle many of the advances it made during the 1940s, 1950s and 1960s. In the 1990s and up to the present day, it retrenched even further. In days past, a “liberal” justice was willing to create new constitutional rights from the “majestic generalities (hats off to Justice Robert Jackson, writing in the 1940s)” contained in the constitution’s text. Today, a “liberal” justice merely refuses to overrule daring decisions made in an earlier time. And in most events, even a modern “liberal” justice will qualify, explain and limit older decisions until they lose all their force.

Interestingly, many people believe that the Supreme Court stands for justice. Before I studied law, I could name only one Supreme Court decision: Brown v. Board of Education, 347 U.S. 383 (1954). In that case, I knew the Court forbade racial segregation in public schools. That symbolized a bold, dramatic commitment to liberty, even when Congress and the President did nothing to correct the problem. When I later began learning the technical process by which the Court made its decision, I did not lose respect for the Brown justices. In essence, they took constitutional text and breathed contemporary life into it. Nothing in the Constitution’s literal words gave them license to forbid segregation in public schools. But they understood the spirit behind the words in order to do justice. That warranted my respect and admiration.

What words did the Court in Brown examine to forbid segregation in public schools? They examined the Fourteenth Amendment, Section 1, specifically: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” Using those words alone—and some social science studies—the Court satisfied itself that racially segregated school systems branded African-Americans “inferior” and denied them “equal access to public education.” Without equal access to public schools, African-Americans did not enjoy “equal protection” under law, and therefore the segregated school systems violated the Constitution.

Very few Americans—even conservative Supreme Court justices—disagree with the result in Brown. But I wonder whether they agree with Brown simply because it is an old decision, or because so much popular mythology has grown up around it. After all, the Supreme Court was not simply deciding a technical constitutional question in Brown. It was deciding a much more fundamental question, namely, whether the United States stands for equality.

America has struggled in its relationship with equality. Equality represents an intractably awkward tension point between principle and practice. After all, The Declaration of Independence assures us that “all Men are created equal,” yet at the time, slaves of African descent made up 20% of the Nation’s population. Against that background, America’s rhetoric about equality, dignity and justice rang hollow. How could a Nation of liberty, after all, lay claim to justice when it practiced human slavery in its own borders? This critical gap between principle and practice chafed against moral sensibilities in the United States and culminated in the Civil War. It was simply impossible to maintain the tortured charade of “liberty for whites, slavery for blacks” without extirpating slavery altogether. It was simply too disingenuous for the Nation to continue along that hypocritical path.

After the Civil War, America made efforts to flesh out the “equality promise” it made in the Declaration. The Fourteenth Amendment represents the boldest legal step to secure equality for all in the United States. The American people—by democratic supermajority—declared that “No State shall” make laws disfavoring blacks. In large part, Americans fought the Civil War to correct the patent injustice of maintaining a slave class in a Nation of liberty. Now, they aimed to correct history’s error by enshrining equality in the Constitution.

Despite these legal efforts, practical equality never really took hold in the United States, at least for black Americans. Emerging from slavery, they faced rampant private discrimination, unemployment, mob justice and an unfair inability to integrate into white society. Rather than promoting the “equality principle” that animated the Fourteenth Amendment, the Supreme Court relegated it to mere “aspiration,” holding in numerous decisions that the Equal Protection Clause only applied to State actions, not private ones. The Constitution, in other words, did not require all men to drop their racist beliefs. In fact, it was perfectly legal to discriminate against blacks, as long as you were not wearing a State uniform or receiving a paycheck from the State. Although subsequent legislation attempted to remedy some private discrimination, the hard truth remained: Blacks were shunned, marginalized and excluded from mainstream American civilization, no matter what the Constitution said.

For decades, America went its merry way. Blessed by the Supreme Court’s decision in Plessy v. Ferguson, 163 U.S. 537 (1896), States maintained a “double legal standard” for blacks. In Plessy, the Court explained that the Fourteenth Amendment does not require precisely equal advantages for blacks and whites; rather, States have a right to “regulate racial relations” within their borders, including segregating public and private accommodations. Not surprisingly, black facilities were invariably inferior to their white counterparts. But they were technically “equal,” and that allowed States to avoid restrictions under the Fourteenth Amendment.

In 1954, Brown took a bold, practical stance against this disingenuous, hypertechnical approach to equality. For the first time, the Supreme Court recognized that the racial assumptions behind segregation caused lasting psychological damage to black Americans. For its part, the Court recognized the desperation and frustration blacks felt attempting to compete in an ostensibly “equal” system that denied them every advantage at every turn. Without access to education, they had no chance to compete for jobs, nor could they transcend their largely inferior economic circumstances without employment opportunity. In essence, the Court saw that technical equality does not mean practical equality. In fact, technical equality was nothing but a thin veil obscuring a continuing, fundamental pattern of injustice against black Americans.

Brown thrilled me because it pierced to heart of the festering racial issue in the United States. Rarely has the Supreme Court ever so cogently “nailed” a question as it did in Brown. To be sure, its decision did not solve the racial problem in this country, but at least it announced that it saw through the legal charade of “technical equality.” And it saw the pernicious social effects that flow from maintaining a system that betrays the core principles that supposedly drive our Nation.

I believe that America’s race problem is the great skeleton in our Nation’s closet. All rhetoric about freedom, equality, prosperity and fairness must contend with the brutal truth that a large segment of the population does not enjoy the same advantages as all other ethnic groups. Blacks have shorter life expectancies, much higher delinquency rates and much lower incomes than whites. They consistently rank lower in academic scores and have much greater difficulties assimilating into “normal” economic circumstances. Glib critics say this is because blacks are “lazy” and “are too dependent on help from the government.” My response is that blacks suffer today because the legacy of slavery and State-sanctioned inequality is alive and well. And they struggle vainly against it every day.

There are very few true “Americans” anymore. Native populations are virtually nonexistent after centuries of European expansion, wars, plagues and forced relocations throughout North America. To be accurate, a white “American” today is actually a European. Immigrants from all over Europe populated this country. In recent decades, immigrants from Asia and Central America arrived in greater numbers. They all came to the United States voluntarily. They wanted a place to make more money or to practice their religion without persecution.

Black Americans, by contrast, did not come to this country because they wanted to. They were transplanted on this continent from Africa after a hellish trans-Atlantic crossing in which many died. Once the survivors arrived, they became commercial objects. They were used as cattle to maximize agricultural profits for white landowners. They had no rights at all; indeed, the law did not even regard them as human beings. They were “property.” As recently as 1857, the United States Supreme Court said exactly that. In sum, black Americans did not make a choice to be in the United States. They were forced here against their will, exploited, tortured, reduced to property then suddenly set free by Presidential fiat. Even after Emancipation, white Americans continued to marginalize them, lynch them, force them to sit in segregated restaurants and belittle them with obviously unequal treatment. Should it surprise us, then, that they continue to suffer disadvantages? History’s wounds do not heal quickly.

In addressing the race problem in America, the Supreme Court has enjoyed several opportunities to take a stand for principle, even if symbolically. By recognizing the practical, modern disadvantages engendered by historical discrimination against black Americans, the Court showed itself willing to infuse new meaning into the United States Constitution. Sadly, the Court’s momentary compassion quickly faded.

In the decades immediately following Brown, the Supreme Court struggled to invent practical ways in which to desegregate public schools. But by the 1990s, the fire was out. There was no longer any sympathetic rhetoric in the Court’s decisions about “equality” or the “inherent inferiority” created by State-sponsored racial prejudice. Instead, the Court mechanically applied numerous limiting precedents to the cases it encountered, repeatedly cutting down on the principles it so boldly announced in Brown. It refused to even consider cases in which private actors engaged in racial discrimination because “the Fourteenth Amendment requires State action.” Worse, it invalidated attempts to help blacks through legislation. In an ironic turn, the Court today uses the Fourteenth Amendment to help whites, not blacks. During the 1990s, the Court increasingly claimed that the Fourteenth Amendment guaranteed “color-blind” governmental action, so that even governmental action intended to help blacks would not be allowed if it treated whites differently than blacks. While the words of the Fourteenth Amendment technically support this reading, a brief look at history illustrates its absurdity: Congress and the States did not pass the Amendment in 1868 because white people faced difficulties after the Civil War; they passed the Amendment to help newly-freed blacks find their way in white society. If the goal was to help whites, there would have been no reason to fight the Civil War or pass the Amendment.

In 2005 and 2006, two fresh conservative justices ascended to the bench: Chief Justice John Roberts and Justice Samuel Alito. Not surprisingly, these conservative justices continued the perplexing approach to race questions that began in the 1990s. In 2007, the new Court grappled with a school racial desegregation case: People Involved in Community Schools v. Seattle School District No. 1, 551 U.S. __ (2007). Here, the Court—by a 5-4 majority—invalidated two local school boards’ attempts to guarantee “racial balance” in their school systems because they wanted to ensure “diversity in education” for their students. The school boards reasoned that the best way to take action against the inherent inequality between blacks and whites was to guarantee an integrated educational experience at an early age. The school boards believed that “societal discrimination and its effects” made equality impossible, and societal discrimination began in racially imbalanced schools. For that reason, the districts took action against it by requiring racially balanced schools. In the boards’ view, integration was a reasonable way to nip discrimination in the bud by cultivating mutual understanding in children at an early age.

Chief Justice Roberts literally scoffed at the school boards’ principled purposes. Rather than addressing the reality of racial tension in the United States, Roberts coldly applied several conservative precedents from the 1980s and 1990s (many of which were 5-4 decisions that did not even remotely embody consensus on the Court). He decreed that the school boards had not met their “heavy burden” to invoke so-called “race-based remedies.” In the same vein, he said that “remedying racial imbalance” is not even a legitimate State goal warranting State action. Although he conceded that “diversity in college education” was a “compelling State interest” in the university and postgraduate spheres, “diversity in elementary education” was not. In fact, the school boards here went beyond the pale by simply fixing a racial “percentage” for each school district. For Chief Justice Roberts, “outright racial balancing” through “nonindividualized, mechanical means” was “patently unconstitutional.” In his view, the Fourteenth Amendment did not allow States to place “irrelevant reliance on race.” Rather, a State could use race in its decisionmaking only after “good-faith, genuine attempts” to apply “race-neutral alternatives.”

In a concurring opinion, Justice Clarence Thomas went even further than the Chief. He said that there is a “fundamental distinction” between “racial imbalance” and “segregation.” Government has no business correcting “racial imbalance,” according to Thomas, because government is not responsible for that imbalance. Blacks and whites live in different areas because they make “innocent private decisions” and “voluntary housing choices.” Government had no role to play in those “innocent private decisions,” so government is not entitled to take action against the resulting imbalance. Rather, government can only take action against “segregation,” defined by Thomas as “intentional State action to separate the races.” Applying that definition, Thomas reasoned that government has “no legitimate interest in promoting racial balance” or “integration” because those are “private concerns.” In fact, he even scolded the school boards for “imposing” racial balance on one-race schools because they appealed to “classroom aesthetics” and catered to “[hypersensitive], elite sensibilities.”

In a word, both Roberts’ and Thomas’ arguments completely scrap Brown’s bold stance on race in America. Rather than viewing racial questions with a compassionate eye, Roberts and Thomas merely recite controversial Court opinions from the 1980s and 1990s to frustrate integration. They do not even begin to address the deeper questions of inequality and injustice that lurk behind the racial question. Appallingly, both Roberts and Thomas claim that they agree with Brown. This may be true as a matter of strict form, but certainly not as a matter of spirit.

There is no risk in saying that “State-sponsored, intentional racial discrimination is not allowed in public schools.” Indeed, such blatant, State-sponsored discrimination no longer exists on the statute books. Rather, discrimination in the United States today is far more subtle precisely because it is exclusively private. Today, laws all promise equality; but individual citizens do not. In the aggregate, private decisions continue to obstruct the ultimate equality enshrined in the Declaration of Independence just as much as public laws once did. Justice Thomas says that “innocent private decisions” are not a matter of constitutional concern. How can that be? If millions of private decisions land blacks in precisely the same spot in which they found themselves in 1954, how could that not be a constitutional concern? How can he say that “racial balance” is not a legitimate interest? Is racial balance not the ultimate goal? As long as blacks perennially live in the poor section while whites live in the rich section, where is the equality? It is sheer absurdity to suggest that black Americans live in ghettos because they made “voluntary housing choices.” They live in ghettos because low-cost housing is all they can afford. They lack the skills necessary to make sufficient money to “voluntarily choose” better housing. They lack those skills because they did not receive equal education and faced a lifetime of private discrimination. If our laws preach equality yet even a cursory glance down any urban street reveals a completely contrary reality, what good are the laws? In Justice Thomas’ case, the result is doubly shocking: This is a man who avowedly benefited from programs that enabled him to integrate into American educational and governmental institutions. Now he says that other members of his race do not deserve the same preferential treatment as he did. In other words: “I got mine. Now you get yours.” That is not principle. That is regression.

I fear that we can expect more such foolishness from our Supreme Court in the coming years. That is why I have steadily lost faith in the Court as an institution. I believe that the Court must strive to grapple with the larger issues that underlie any constitutional question. Only a blind man would say that this country does not have a grievously bad record on racial equality, and we have a very, very long way to go. Even if the Supreme Court ultimately has no power to decree an end to inequality, it has a duty to endorse principles that may one day lead to that result. The Court in Brown took a brief step on that moral high ground when it candidly addressed the legacy of racial wrong that continues to mock the equality principle in America. The Court should take up that mantle in the future. And it should look beneath the literal words in the Constitution to truly flesh out its principles in light of contemporary difficulties. Until that happens, however, I truly worry what the Court will do. If recent decisions are any harbinger, I expect nothing but cold, unforgiving, technical analysis that perpetuates injustice rather than fights it.