Color and the Court

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.

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