The following is an essay by Michael J. Klarman, Kirkland & Ellis Professor of Law at Harvard Law School, for our program on Race and the Supreme Court.  Professor Klarman has written extensively about the Court and racial equality.

The conventional wisdom that the U.S. Supreme Court heroically defends racial minorities from majoritarian oppression is deeply flawed: Over the course of American history, the Court, more often than not, has been a regressive force on racial issues.

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect."  After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations.  Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans.

The romantic image of the Court as savior of African Americans derives largely from Brown v. Board of Education and its immediate progeny.  To be sure, the Court's epic 1954 ruling, which invalidated state-mandated segregation in public schools, was of enormous symbolic importance to blacks, and it helped catalyze the transformative racial change accomplished by the civil rights movement of the 1960s.  In the fifteen years following Brown, moreover, the Justices not only significantly expanded the scope of that decision, but they also went to great lengths to overturn the criminal convictions of sit-in demonstrators, created new constitutional law to protect the NAACP from legal harassment by southern states, expanded the range of private actors subject to the Fourteenth Amendment's antidiscrimination command, and upheld broad exercises of congressional power on behalf of civil rights.

But the civil rights movement disintegrated in the late 1960s, and Republican candidate Richard M. Nixon won the presidency in 1968 on a platform emphasizing law and order and opposition to court-ordered busing to desegregate schools.  Ninety-seven percent of blacks voted for Democrat Hubert Humphrey that year, but only 35 percent of whites did so.  Nixon's victory at the polls translated directly into changes in the Court's racial jurisprudence: He appointed four new justices during his first term.

Almost immediately, the new Nixon appointees began to exert tremendous influence on the Court's racial jurisprudence.  In 1974 in Milliken v. Bradley, by a five-to-four vote, the Justices barred the inclusion of largely white suburbs within an urban school desegregation decree, absent proof that school district lines had been racially gerrymandered.  As a result, federal courts were disabled from accomplishing meaningful school desegregation in most cities.  Nixon's appointees comprised four of the five justices in the majority.

On another racial issue of critical importance, the Burger Court ruled in Washington v. Davis (1976) that laws making no racial classification would receive heightened judicial scrutiny only if they were illicitly motivated; showing that a law simply had a disproportionately burdensome impact on racial minorities was deemed insufficient to establish a violation of the Equal Protection Clause.  As a result of that decision, federal sentencing guidelines that prescribe the same punishment for possession of five grams of crack cocaine as for five hundred grams of powder cocaine have survived constitutional challenge, even though 90 percent of crack defendants are black, while three quarters of powder defendants are white.

In the 1978 Bakke decision, the Burger Court narrowly ruled that race-based affirmative action policies would be subject to the same strict judicial scrutiny as had been applied to traditional Jim Crow legislation.  Conservative justices, then and since, have read the Fourteenth Amendment, which was adopted in order to protect the newly freed slaves from racial discrimination with regard to civil rights, as a mandate of government color-blindness.  The Court's overall record on race-based affirmative action has been mixed since Bakke.  The conservative justices have almost invariably voted to invalidate such programs, while the liberal justices have almost always voted to uphold them.  Individual case outcomes have been determined by the votes of swing justices"”first, Lewis Powell, and then Sandra Day O'Connor.  But the Court has invalidated more affirmative action programs than it has sustained.

The conservative justices' hostility to affirmative action reflects a constitutional double standard.  These are the same justices who ordinarily"”for example, in cases involving abortion, gay rights, or physician-assisted suicide"”profess commitments to judicial restraint, democratic decision making, respect for states rights, and an interpretive methodology of textualism and originalism.  Yet, all of these considerations point in the direction of permitting race-based affirmative action.  To strike down affirmative action programs is for unelected judges to invalidate the policy preferences of state and local governments on a thin constitutional basis.  The text of the Fourteenth Amendment says nothing about government color-blindness"”indeed, Section One doesn't even mention race"”and the original understanding of those who adopted and ratified the amendment was plainly not a mandate of color-blindness.  The Framers of the Fourteenth Amendment (and their constituents) were too racist to require government to eschew all racial classifications.  They thought that laws disenfranchising blacks, excluding them from jury service, segregating them in schools, and forbidding interracial marriage would plainly be permitted under the new amendment.

The Rehnquist Court pretty consistently ruled against the interests of racial minorities, though most of its decisions were narrowly divided along partisan lines.  Since Presidents Ronald Reagan and George H.W. Bush appointed five new justices to the Court between 1981 and 1991, the conservatives have enjoyed a secure majority on most racial issues (though, interestingly, not on other constitutional issues, such as abortion, gay rights, the death penalty, or the separation of church and state).  By 1991, the last ten appointments to the Court had been made by Republican presidents, none of whom won much more than 10 percent of the black vote at the polls.

It was the Rehnquist-led conservatives who sounded the death knell for court-ordered school desegregation.  In a case from Oklahoma City in 1991, a narrowly divided Court ruled that once a school board had complied in good faith for a "reasonable period of time" with a desegregation order, and the vestiges of past discrimination had been eliminated "to the extent practicable," the school district was entitled to be released from federal supervision.  If terminating a desegregation decree under these conditions resulted in increased school segregation, then private housing preferences were probably the cause, according to the conservative majority, and responsibility could not be ascribed to the state.

In 1995 the conservative justices indicated that their tolerance for remedial alternatives to busing had also run thin.  In a five-to-four decision, the Court forbade the use of magnet school programs for the purpose of enticing suburban whites into racially integrated urban schools and imposed virtually insurmountable hurdles to judicially mandated increases in educational funding as a remedy for school segregation.

In addition to curbing court-ordered school desegregation and race-based affirmative action, the Rehnquist Court's conservative majority inaugurated a new strand of constitutional jurisprudence that called into question the permissibility of legislative districts that were gerrymandered to enhance the prospects of minority racial groups electing representatives of their own race.  In a series of five-to-four decisions, the Court ruled that the Fourteenth Amendment presumptively bars such districts when the predominant motive behind their creation was racial.  As with the conservative justices' posture towards affirmative action, these decisions were difficult to reconcile with the original understanding of the Fourteenth Amendment, which plainly did not protect political rights such as voting.

Perhaps most disturbing, the Rehnquist Court proved largely indifferent to race discrimination in the criminal justice system.  In McCleskey v. Kemp (1987), the conservative justices narrowly rejected an equal-protection challenge to the discriminatory administration of the death penalty in Georgia.  Specifically, according to a study that the justices stipulated to be valid for purposes of the case, defendants who murdered whites were 4.3 times more likely to receive the death penalty than were those who murdered blacks.  Rejecting the challenge, the Court observed that race discrimination could not possibly be entirely eliminated from the administration of the death penalty so long as actors integral to the system"“such as prosecutors and jurors"“exercised significant discretion.  The majority also noted that similar racial disparities existed throughout the criminal justice system, which meant that vindicating McCleskey's claim would have had potentially enormous consequences.  (One may be pardoned for wondering why this observation did not make McCleskey's claim more compelling rather than less so.)

In 2007 another slim conservative majority brought the Court's racial jurisprudence full circle from Brown.  In 1954 the Court had ruled that state-mandated racial segregation in schools violated the Fourteenth Amendment.  In 2007 the conservative majority, in an opinion written by the new Chief Justice, John Roberts, ruled that for school districts to take the race of students into account in order to promote racial integration also violated the Fourteenth Amendment.

The conservative majority in Parents Involved (2007) spoke of the constitutional mandate of color-blindness without offering any textual or historical argument in support (probably because, as already noted, no convincing arguments of these sorts exist).  Instead, the conservatives relied most heavily on Brown and, extraordinarily, on the NAACP's arguments to the Court in Brown"”an unusual source of constitutional interpretation, to say the least.  Brown, of course, need not be read to forbid all government racial classifications; it can just as easily be interpreted to forbid only those racial classifications adopted for the purpose, or having the effect, of disadvantaging traditionally oppressed racial minorities.  It is true that the NAACP argued in Brown for a constitutional mandate of color-blindness, but that is not what the Court gave it.  The Justices in 1954 were too wary of calling into question antimiscegenation laws"”an especially explosive political issue at the time"”to insist on government color-blindness across the board.  Moreover, the conservative justices in Parents Involved were taking the NAACP's Brown argument badly out of context: The NAACP had argued for government color-blindness during an era of formal Jim Crow.  To portray the organization as repudiating race-conscious government measures designed to remedy past discrimination at a time when nobody could have dreamed of legislatures adopting such measures smacks of disingenuousness.

I would draw three lessons from the last forty years of the Supreme Court's racial jurisprudence.  First, most of these rulings have been five to four.  Had there been one more liberal justice, many of these cases likely would have been decided differently.  It was not predestined that the Court would reject race-based affirmative action, prematurely terminate the school desegregation project, or reject the argument that the Constitution bars racially disparate impacts regardless of discriminatory motive.  Constitutional interpretation involves judicial discretion; judicial discretion reflects political ideology; and conservative justices tend, unsurprisingly, to subscribe to the conservative racial ideology of the party that appointed them.  That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation's ugly history of white supremacy as something more to be repudiated than remedied.

Second, while the political composition of the U.S. Supreme Court is partly fortuitous, the victories of the conservative bloc of justices since 1970 have predominantly been a function of politics.  Between 1968 and 2008, Republicans controlled the presidency for twenty-eight years, Democrats for only twelve.  Of the fourteen appointments made to the Supreme Court between 1969 and 2006, twelve were made by Republican presidents, most of whom prided themselves on their conservative politics.  Because constitutional interpretation is so inextricably fused with politics, it should come as no surprise that justices appointed by presidents for whom very few black people voted would decide race-inflected cases in ways that contravened the preferences of most African Americans.

Third, one has to wonder how much difference it would have made had the liberal justices triumphed on some of these racial issues.  Public opposition to "busing the suburbs" was so intense by the early 1970s"”think of the 1974 anti-busing riots in Boston, the so-called cradle of abolitionism"”that a contrary decision in Milliken might either have spawned a constitutional amendment to overturn the ruling or inspired massive defiance.  A conservative majority of justices has succeeded in invalidating most affirmative action plans reaching the Court, but even when the liberals have scored an occasional triumph, as with the University of Michigan Law School case in 2003, that result has been overturned at the polls, as most Americans seem inclined to support referenda forbidding benign racial preferences.  Similarly, by the time the Court in 2007 invalidated race-based pupil assignment policies in grade schools that were designed to promote integration, only 5 or 10 percent of all school districts employed such policies; most of the country had already given up on racial integration.

In sum, while the last forty years of conservative hegemony on the Court has yielded racially regressive results pretty much across the board, one should not absolve the larger society that the Court serves of responsibility for such outcomes.  The Supreme Court mirrors society at least as much as it shapes it.  The conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence.

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