Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 18, 1993 TAG: 9307180230
SECTION: HORIZON PAGE: C-1 EDITION: METRO
SOURCE: By DICK LEHR BOSTON GLOBE
DATELINE: LENGTH: Long
The mounting evidence comes in a review of the Supreme Court's most recently concluded term, during which a slim but solidly aligned majority of five justices furthered its retrenchment from race-conscious jurisprudence, pushing instead its notion that racial harmony is best achieved when the courts and the law are "colorblind," treating all the same.
This evolution is drawing criticism from civil rights advocates, who call it naive, and praise from conservatives, who call it fair. But the new conservative dominance on civil rights has gone mostly unnoticed amid commentary on the recent emergence of a trio of moderate justices who have put the brakes on the court's swing to the right in other areas.
In two key rulings issued in the final days of the 1992-93 term, the Rehnquist court displayed a hardening view toward race-based remedies to discrimination, which long have been favored by liberals. The rulings, in cases involving job discrimination and voting rights, are in addition to the already tough stand the Rehnquist court has taken toward affirmative action and other politically charged issues that resonate with questions of race and racism.
"The court is more skeptical now about the use of race than at any previous time," said Paul Brest, dean at the Stanford University Law School, citing the two rulings.
Brest, who has written extensively about race and the Supreme Court, said, "The court is more clearly going to apply very strict standards to any use of race for remedial purposes than it was inclined to do in the past."
In the view of the controlling five-justice majority, building remedies for past discrimination around racial categories actually works to perpetuate racism - by carving out permanent niches for minorities, by reinforcing racial stereotypes and differences and, most importantly, by undercutting and even postponing the ultimate goal of a colorblind society.
It's also a trend that's been overshadowed by headlines given to the bloc of so-called moderate conservatives that last term prevented the demise of the Roe vs. Wade abortion ruling.
But while basic abortion rights were preserved, two justices who made up the purportedly moderate majority - Sandra Day O'Connor and Anthony M. Kennedy - have joined the court's staunchest conservatives and taken a hard-line view of racial preferences. The other three are Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
The strength of this consolidated majority is expected to remain undiluted by the nomination of federal appeals judge Ruth Bader Ginsburg to replace the retiring Byron White.
"I think the general public does not understand how far right the Supreme Court has swung on civil rights," said Randall Kennedy, a Harvard law professor who specializes in constitutional law and race, and who once was a law clerk to Thurgood Marshall.
"There are five definite votes who are against remedial measures that explicitly take race into account," he said.
In the job bias case, St. Mary's Honor Center vs. Hicks, the court on June 25, ruling 5-4, set out requirements making it more difficult to prove that discrimination was because of race, gender or religious prejudice.
Three days later, the court ruled 5-4 in a voting rights case that congressional districts designed to give minorities a majority of votes may be unconstitutional and violate the rights of white voters. By its ruling in Shaw vs. Reno, the five-justice majority trimmed the scope of the Voting Rights Act of 1965, just as it had in another case a year earlier.
"The court is moving away from the Voting Rights Act, even casting a constitutional cloud over it," notes Laurence Tribe, a liberal constitutional law professor from Harvard. Tribe says the pair of rulings issued in the final days of this term fit into a larger, "reactionary trend by the court in the civil rights area."
The majority opinions in both cases espouse what scholars have called the colorblind theory.
"Racial classifications of any sort pose the risk of lasting harm to our society," O'Connor wrote in the voting rights case - as succinct a presentation of the colorblind argument as has been offered to date. "They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."
This view, pushed and refined perhaps most vigorously by Scalia, departs sharply from the classic liberal position, allowing for broader considerations of race, that held more sway several decades ago, on the court and in politics.
"In order to get beyond racism, we must first take account of race," Justice Harry Blackmun wrote in a 1977 case. "There is no other way. And in order to treat some persons equally, we must treat them differently."
The most dramatic expression of the new majority's view came during the 1989 term, which featured a number of rulings viewed as setbacks by civil rights leaders, some of which later were negated with adoption of the Civil Rights Act of 1991. The affirmative action ruling in City of Richmond vs. J.A. Croson Co. was among the most prominent.
Writing what has since become a refrain for the majority view, Scalia said, "The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency - fatal to a nation such as ours - to classify and judge men and women on the basis of their country or origin or the color of their skin. A solution to the first problem that aggravates the second is no solution at all."
Marshall, two years from his retirement in 1991, strongly dissented, writing that Scalia was undertaking "a deliberate and giant step backward in this Court's affirmative-action jurisprudence. . . . The majority launches a grapeshot attack on race-conscious remedies in general."
Since then, the extension of the colorblind principle to such areas as voting rights, job discrimination and the death penalty has won the applause of conservatives.
by CNB