Justice Antonin Scalia dismissed the 1965 Voting Rights Act as a “perpetuation of racial entitlement” during oral arguments on the landmark civil rights law that the high court gutted on Tuesday.
On Monday, in his concurring opinion in a decision casting a skeptical eye on race conscious admission policies at the University of Texas, Justice Clarence Thomas bemoaned the failure of the court to outlaw affirmative action entirely, equating its proponents with “the people who defended segregation generations ago.”
In this high court’s perverse world view, bipartisan policies enacted to remedy centuries of racial oppression threaten to become weapons of reverse discrimination aimed at the newly-beneficent white majority.
On which post-racial planet does the majority of the nation’s highest court live exactly?
These decisions came down the same week that Georgia’s Paula Deen embraced her inner racist and George Zimmerman’s attorney opened his defense to a Florida jury with a knock-knock joke [video below] about the unarmed black teenager his client shot to death last year.
I know — the president of the United States is a black man. I know, too, that racial animus is not the sole province of the South. But, in its desire to consign the bad old days to history, the conservative majority betrayed a willful blindness to the present.
The poll tax might have disappeared but discriminatory voter suppression is not yet a vestige of the past. Did the court miss the proliferation of voter identification laws or the abrupt curtailment of early voting in 2012 that disproportionately affected minorities and the poor? Has it not noticed the racial disparity in higher education where 32.6 percent of the non-Hispanic white population over the age of 25 holds a college degree compared to 19.6 percent of adult blacks.
There is little comfort in the fact that the court did not declare affirmative action in college admission itself unconstitutional or overturn the 1965 Voting Rights Act in its entirety. Civil rights are as easily eroded as they are erased. All this incrementalism just means that the U.S. Supreme Court is as deeply divided as the U.S. Congress.
Half a loaf might provide as little nourishment as no loaf at all. Upholding the principle of federal oversight while simultaneously striking down the formula determining which communities must get approval before altering their voting practices renders the principle moot. What are the chances of this Congress agreeing upon a new standard that would meet this court’s approval? To their credit, civil rights advocates are already at the drafting table. To their dismay, the Texas attorney general has already announced plans to immediately implement the tough voter identification law that had been awaiting federal approval.
Similarly, the fact that the court did not preclude the use of race as one factor among several to achieve a diverse student body does not mean this issue is resolved. The high court sent the Texas case back to the appeals court with instructions to determine whether the university could have achieved its diversity aims with a race-neutral approach. The appellate court must explore “how the process works in practice,” Justice Anthony M. Kennedy wrote. “Strict scrutiny must not be strict in theory but feeble in fact.”
Such second-guessing of public universities will only invite more litigation from those who object to consideration of skin color as a factor in college admission (as opposed to wallet size, athletic prowess or legacy status, none of which receive much in the way of “strict scrutiny” in our social discourse).
As long as deep, subliminal racism persists — manifested this week in a TV cook’s slave plantation fantasies and in a neighborhood watchman’s reflexive suspicion of a hooded black teenager — there will be no such thing as a “race neutral” approach to equality in the United States. Access to the ballot box and to the college classroom is too vital to pretend, as the majority of the high court did this week, that the struggle is over.