by Nicholas Lemann July 30, 2007
George W. Bush, whose father was often accused of being too cautious and incremental by conservatives, came into office six years ago with an ambition to remake nearly everything about American government. In some cases, like Social Security and immigration, he hasn’t been able to get the big changes he wanted. In others—Iraq, tax cuts, civil liberties, the environment, education—it seems clear that his successor, whoever it will be, will have to spend a good deal of time undoing what was supposed to have been Bush’s legacy. But the President has achieved one wholesale change that will likely endure for a generation: the construction of a distinctly right-wing Supreme Court.
Just before the end of the past term, the Court issued a decision, written by Chief Justice John Roberts, that signalled a complete departure from more than half a century of jurisprudence on race. The case is called Parents Involved in Community Schools v. Seattle School District No. 1, and it addresses a legal challenge to two city school systems—Seattle’s and Louisville’s—for consciously trying to achieve racial integration in assigning students to particular schools. Roberts, in his decision, is almost reverential toward the last major Supreme Court decision on race, which in 2003 upheld the University of Michigan Law School’s use of race as a factor in admissions. But the thrust of his argument—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—makes it impossible to imagine that he would have joined the majority in the Michigan case had he been on the Court at the time.
Justice Clarence Thomas, who dissented in the Michigan case, wrote a concurring opinion in the Parents Involved decision that is far more confrontational than Roberts’s, and lays out once again his long-held view of race and the courts. We have a “color-blind Constitution,” he asserts, even though the Supreme Court refused to recognize this until its monumental, unanimous decision in Brown v. Board of Education, in 1954. The essence of Brown, Thomas believes, is an absolute prohibition on taking race into account for any reason. “What was wrong in 1954 cannot be right today,” he writes.
The Parents Involved decision—and, indeed, nearly the whole modern history of Supreme Court decision-making on race, including Brown—rests on one resonant passage in the Fourteenth Amendment to the Constitution, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” But, as a matter of history, the idea that the amendment was meant to make the country “color-blind” is wrong, and wrong in a way that is instructive for people thinking about American race relations today.
Within a few months of the end of the Civil War, most of the Southern state legislatures had reconvened and enacted “Black Codes” that returned blacks to a condition almost indistinguishable from slavery, and horrifying white-on-black violence had broken out across the region. The Fourteenth Amendment, proposed by Congress in 1866, was meant to insure the safety and the basic rights of the Southern states’ black residents. But in passing it Congress explicitly decided not to give African-Americans a federally guaranteed right to vote—that came an election cycle later, with the Fifteenth Amendment—and nobody thought that it would lead to integrated public schools or facilities. Black and white citizens sat in segregated galleries as they watched the members of Congress vote, and evidently the arrangement did not register as contradictory to the spirit of the amendment.
Nonetheless, the legislatures of all but one of the former Confederate states declined to ratify the amendment. Those of Delaware, Kentucky, and Maryland voted against it. The amendment became law only because Congress put the Southern states under military rule and refused to end the occupation and reëstablish democracy until they voted for ratification. Even then it required the presence of the U.S. Army in the South to give the Fourteenth Amendment the force of law. As soon as the federal government stopped using troops as enforcers, in the mid-eighteen-seventies, the Southern states ignored the Fourteenth Amendment, and continued to do so for nearly a century. After Brown, many Southerners and conservatives argued that the amendment had nothing to do with integration, and that it was illegitimate, anyway, because of how it had been ratified.
By 1954, the country had begun to change its racial attitudes, and the Brown decision was able to read a new meaning—the absolute disapproval of segregated schools—into the Fourteenth Amendment. That decision, along with the civil-rights movement, pushed racial attitudes further along. By the seventies, white plaintiffs had begun filing lawsuits against widespread efforts to help blacks in education and employment, on the ground that these efforts discriminated against whites. The plaintiffs invariably cited the Fourteenth Amendment, too. That more than a century of litigation on race has centered on the meaning of a single passage in the Constitution should be taken as a sign that the passage doesn’t, and wasn’t intended to, contain a clear and perpetually useful instruction on how the country should conduct its affairs on racial matters. Justices Thomas and Stephen Breyer, who wrote the long dissent in the Parents Involved decision, argue for two clashing ideals: a “color-blind Constitution” and integration. Neither of these ideals has been more than briefly and episodically descriptive of reality, or has served, except momentarily, as the principle around which the politics of race was organized, because, alas, not many realms in American life have been either truly color-blind or truly integrated.
The Supreme Court, since it began hearing cases on busing and affirmative action in the seventies, has been cautious in its decisions on race—as a rule, the days of unanimous decisions are over—and other institutions in American society have followed its lead. As Breyer points out in his dissent in Parents Involved, the Seattle and Louisville plans that came before the Court were much less invasive than earlier attempts to achieve racial integration, via busing and other means, in those cities’ schools. The country has slowly ratcheted back a host of policies aimed at the twin goals of black advancement and racial harmony, but it has not abandoned them—and, until now, neither has the Court. In the legislative branch the Administration’s preference for simple, moralistic formulations is foundering. In the Supreme Court it is alive and well. The Court would do well to contemplate the landscape of the Administration’s wreckage before it considers any other radical solutions, and sweeps away an accumulated body of law and experience. ♦