The conservatives on the U.S. Supreme Court are aggressively pressing their view that American law and policy should remove considerations of race, despite the objections of President Obama, who in words and deeds has rejected this “post-racial” notion even as his own rise has shown skin color is less of a barrier than ever in the United States.
In oral arguments on the Voting Rights Act this week, several of the court’s conservatives sharply criticized the law’s Section 5, which requires parts or all of 16 states, mostly in the South, to get federal approval for changes to their voting laws because of their past history of racial discrimination. The conservative jurists bluntly declared that America is well past the time when the South’s history on race should shape laws, mostly memorably when Chief Justice John Roberts said, “is it the government’s submission that the citizens in the South are more racist than citizens in the North?”
This wasn’t a new argument for the court’s four more conservative justices, Samuel Alito, Roberts, Antonin Scalia, and Clarence Thomas. (Justice Anthony Kennedy, another Republican appointee, generally opposes laws that invoke race, but has not attacked them sharply as Roberts and the other three have.) In a 2007 ruling, the conservatives said school integration plans should generally not consider race to integrate schools, as Roberts argued “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In oral arguments last year, the justices pointedly questioned the need for racial preferences in college admissions and are expected this spring to strike down affirmative action.
If the court rules against the Voting Rights Act and affirmation action in the same term, as is now widely expected, it would deliver a double-whammy blow to liberals, including the one in the White House, who have argued the country’s racial divide remains and that laws should reflect that.
Being black did not prevent Barack Obama’s rise to the White House, and some heralded his victory as a sign the country is moving toward a post-racial future. But not the president himself.
Instead, he has repeatedly emphasized the importance of naming women and minorities to key posts, effectively practicing the kind of affirmative action-for-diversity his administration has defended at the Court. Earlier this year, when Obama was criticized for appointing several white men to key posts, the president expressed offense in interviews that he was being cast as insufficiently concerned with diversity and promised he would name many minorities and women to the remaining jobs in his cabinet and White House staff. He then did so, even breaking his practice of appointing members of his inner-circle to the most important White House jobs by outsider Sylvia Matthews Burwell as his budget director.
His administration not only fought against controversial “voter ID” laws passed in states around the country last year, but likened them to Jim Crow-era legislation. The president himself has made intentional, pointed appeals that invoke race, mostly memorably when he suggested Trayvon Martin could have been his son.
And his appointees to key posts have similarly rejected the post-racial ideal espoused by the court.
“Alabama has no black statewide elected officials,” Justice Elena Kagan, an Obama appointee, noted in defending Section 5 of the Voting Rights Act and suggesting the South still had vestiges of its racist past.
The conservatives dismiss such arguments. In fact, they say the Supreme Court must stop the consideration of race because other branches of government are worried about doing so and then being cast as insufficiently supportive of minorities.
The endurance of Section 5 “is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Justice Antonin Scalia said in the oral argument on the Voting Rights Act. “It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”
If the court strikes down affirmative action or the Voting Rights Act, it may not result in the dire effects liberals have warned. Many universities have already started to find ways to offer preferences to disadvantaged students, many of whom are black and Hispanic, but basing those preferences on factors that are not strictly skin color, such as admitting all students in the top 10 percent of their graduating classes in high school. Last year, courts struck down controversial voter laws in Wisconsin and Ohio without needing Section 5 of the Voting Rights Act, citing other statues in casting those provisions as discriminatory.
But the dichotomy is sticking. The nation’s first black president says race still matters, while the Supreme Court, once the place civil rights advocates looked to for favorable rulings like Brown v. Board of Education, is effectively suggesting it does not. And on this issue, the Court, not the president, is the decider.
Follow Perry Bacon Jr. on Twitter at @PerryBaconJr