The likely impact of the next few Supreme Court appointments on civil rights and racial justice is momentous. So much hangs in the balance that one feels simultaneously energized to make the upcoming election count, while despondent because so much struggle has nevertheless left progress so contingent on this election. Many people erroneously assume that racial progress in America is somehow inevitable. Put simply, however, the nation's moral compass is not too keen an instrument as regards minority rights. It is frequently misdirected by the flux of political passions and majority self-interest, so that fundamental matters of vision, values and ends are hotly contested.
The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word. One might expect that nonpolitical courts would be powerful engines for that project, but America's moral confusion is perhaps more apparent in the courts than in other precincts. Moreover, the next four years are certain to see a series of vital issues come before the High Court, and the outcomes are up for grabs this November.
The Constitution's principal tool for racial and ethnic justice is the equal protection clause of the Fourteenth Amendment. Longstanding Supreme Court doctrine interprets that clause to subject government decisions making use of race to a high standard of justification termed "strict scrutiny." This standard requires that the government's action serve a "compelling interest" and be "narrowly tailored" to fit that interest. Similar dilemmas of justification and proof occur in civil rights disputes that involve antidiscrimination laws rather than the Constitution itself.
Many recent affirmative action and voting rights decisions have been decided by a 5-to-4 vote against minority plaintiffs or local governments attempting to employ progressive race-conscious policies to combat discrimination or promote inclusion of one form or another. Justice Sandra Day O'Connor, who's written the majority opinions in some of the crucial affirmative action cases, has often included language that purports to moderate the views of the more conservative members of the Court. For example, in Adarand Constructors, Inc. v. Peña (1995), which involved set-asides in federal contracts for minority contractors, she made clear that the application of the strict scrutiny test would not be fatal to all federal affirmative action programs involving race-conscious policies, but that the one in Adarand seemed to trouble her. In her concurring opinion in Bush v. Vera (1996), she provided support for the proposition that complying with the Voting Rights Act could constitute a compelling governmental interest that could partially satisfy the first part of a court's strict scrutiny analysis of race-based Congressional district lines. And in Miller v. Johnson (1995), she insisted that while race cannot be a predominant factor in drawing election district lines, absent a compelling interest it may in at least some circumstances be one among other factors, such as protection of incumbents. But just not the one in Miller.
Justices Antonin Scalia and Clarence Thomas have often presented concurrences that would go further than the majority opinions by eliminating any form of race-conscious policy. In Adarand, Scalia largely ignored the country's long history of racial discrimination by equating the "way of thinking" that caused slavery and racial animosity with efforts to remedy racial discrimination through affirmative action. Similarly, Thomas's concurrence in the Adarand case called affirmative action "noxious" and "government-sponsored racial discrimination." In another context, Holder v. Hall (1994), a voting rights case, the concurring opinion of Justices Thomas and Scalia suggested an extraordinarily narrow interpretation of the Voting Rights Act that would limit it to the most egregious individual denials of franchise. As the four dissenters noted, such a narrow position was radical and would have required the overturning or reconsideration of at least twenty-eight previous Supreme Court decisions.