Chief Justice of the United States, John G. Roberts Jr. (AP Photo/Keith Srakocic)
The United States has always ridden a roller coaster of bitter division regarding the meaning and status of our civil rights. It is the best of times! It is the worst of times! One study among several shows that a majority of white Americans now feel that “any gains made by members of minority groups necessarily come at [our] own expense.” The implications of this unfortunate tension go well beyond racial politics, however; and during the month of June, a veritable arpeggio of Supreme Court holdings highlighted a perceptual chasm whose address will have to be the next leg of a civil rights movement embracing all Americans.
First, the Roberts Court has strongly endorsed a pre–civil rights era notion of states’ rights. In striking down the Defense of Marriage Act in United States v. Windsor, it deferred not only to the idea that states should be able to legislate as they please regarding marriage, but left open the possibility of discrimination against same-sex couples in the two-thirds of states that don’t recognize such unions. Combined with the Court’s hostility to the critical role of the interstate commerce clause in federal oversight of race and gender bias at the state level, such a stance potentially places quite a bit on the chopping block down the line.
In upholding the Affordable Care Act last year, Justice Roberts expressed his opinion that the commerce clause is not a proper foundation for enforcing anti-discrimination principles. If that dictum becomes the law of the land, then much of the last century’s equality jurisprudence will tumble, including the legal basis for Title IX, the Social Security Act, unemployment insurance benefits, Medicare, the National Labor Relations Act, the Occupational Safety and Health Act, the Clean Air Act, all federal disaster relief, the Anti-Trust Act, the Equal Pay Act and all jurisprudence related to public accommodation, including the Civil Rights Act of 1964.
Moreover, the Roberts majority is prone to an extreme ahistoricism. In Shelby County v. Holder, Roberts threw out the oversight provisions of the Voting Rights Act based on an apparent commitment to live entirely in the “present”—a present entirely disconnected from reality. Departing from precedent, the justices chose not to interpret the statutory history as about disenfranchisement broadly. Instead they read the act as addressing only the very same turnout and voter suppression rates as in 1965 and as prohibiting only the very same voter tests in use that same year.
While today’s seeming parity of black and white voter registration and turnout is good news indeed, it’s astonishing that the Court’s majority ignored contemporary struggles around voter ID and redistricting schemes aimed to dilute minority representation, not to mention the musical-chairs-style inaccessibility of polling places and permanent felony disenfranchisement. Indeed, Justice Ginsburg’s meticulous dissent in Shelby was a sobering encyclopedia of very recent, very well-substantiated assaults on minority franchise throughout the covered states.
And then there is the affirmative action case of Fisher v. University of Texas. While some civil rights groups claimed victory when the Court remanded it for closer scrutiny, the fight is far from over. Roberts, Scalia and Thomas have long been vociferous in their circular belief that any mention, notice, nod to or accounting of race is in and of itself racist—even when that mention is for remediating racism. This in turn feeds the fetishized fallacy that it is America’s black underclass that threatens all other applicants’ chances for admission.
But consider Abigail Fisher, the named plaintiff. She is a white woman—eighty-second in her high school class, with a 3.59 grade average and an SAT score of 1180. By every measure, she fell below the average entrant to the University of Texas. Yet no one resents her for applying, and few would have given her grief or known her name had she been admitted. After all, nearly half of every class falls below some median.
Fisher represented and was competing within a whole pool of less-than-average candidates. Contrary to public perception, that category is not exclusively peopled by African-Americans. Indeed, potential admittees in this category are neither unintelligent nor undeserving nor uninteresting human beings per se. They compete for a limited offering of publicly resourced education; but distribution of that benefit ought to take into account a cross section of all the marginalized communities that make up a broadly diverse public—just as Mitt Romney did when he (seemingly unwittingly) endorsed affirmative action by calling for all those “binders full of women.” Oughtn’t that “mild accounting”—all that is allowed by affirmative action as it actually exists—be broadened to include, yes, blacks (who, regardless of class, are still stigmatized, along with Native Americans, at rates exceeding all other groups), but also gays, women, students whose first language is not English, children of migrant workers, as well as those who have endured homelessness or illness or fled wars?
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Instead of recognizing the diversity of met challenges that burnish lives as “worthy,” we divide ourselves by ignoring the jurisprudential interests shared by affirmative action for women and for racial minorities; the Voting Rights Act and fair immigration policy; gay rights and abortion; or the connection between Citizens United and the bailout of big banks, but not the debts of foreclosed homeowners or college students.
If it is really true that a majority of white Americans see themselves as either unaffected by the current constricting of civil rights or, worse, adversely affected by civil rights gains, it is bad news not merely for the Constitution but for how we will continue to constitute ourselves generally as one nation, indivisible, with liberty and justice for all.
Also in this issue, Ari Berman writes [2] that activists are already moving “from outrage to action” in fighting the Supreme Court’s decision on the Voting Rights Act.