By Leland Ware
John Roberts was sworn in as Chief Justice of the
U.S. Supreme Court on September 29, 2005. During his confirmation hearing
Roberts said:
Mr. Chairman, I come before the
committee with no agenda. I have no platform. Judges are not politicians who
can promise to do certain things in exchange for votes…I will decide every case
based on the record, according to the rule of law, without fear or favor, to
the best of my ability. And I will remember that it's my job to call balls and
strikes and not to pitch or bat.
Despite this “solemn” promise,
Roberts set out, almost immediately, to advance an anti-affirmative action
agenda. His decisions also show a record of hostility to the Civil Rights advances
of African Americans.
Student Assignment Plans
In a 2007 case, Parents Involved in Community Schools v. Seattle School District and
Meredith v. Jefferson County School
District, the Roberts Court struck down voluntary school desegregation programs. School districts in Seattle, Washington and
Louisville, Kentucky, developed assignment plans which assured that student
populations in individual schools would reflect the racial demographics of the
school districts. The purpose of both programs was to prevent segregation in
individual schools.
Under the Equal Protection Clause of
the Fourteenth Amendment the
legal standard that applies to governmental policies that classify on the basis
of race is "strict scrutiny." To satisfy this requirement, the
government must have a "compelling justification" for the
classification and the means chosen must be "narrowly tailored" to
achieving a legitimate governmental interest.
In
Parents Involved, groups of white parents filed suits
contending that their children had been denied admission to the schools they
preferred. The question in both cases was whether public school officials could
use race conscious student assignment plans without violating the Fourteenth
Amendment.
Roberts rejected diversity as a compelling
governmental interest in elementary and high school student enrollments. Race
could never be a factor in admissions assignments. He added cynically, “[t]he way to stop discrimination on
the basis of race is to stop discriminating on the basis of race.” This disingenuous
comment equates affirmative action to remedy past discrimination to a “no
blacks allowed” sign on a restaurant in the pre-Civil Rights South. There can
be no legitimate comparison between the two.
In 2003, the Supreme Court ruled in a case involving
the University of Michigan that the Equal Protection Clause did not prevent the
use of race-conscious admissions criteria to promote student body diversity.
This should have been controlling legal precedent in Parents Involved. However, Justice Roberts’ plurality opinion attempted
to distinguish the Michigan decision because it involved what he asserted were
the “unique” circumstances of higher education. Roberts did not explain how
student body diversity in higher education is different from diversity in
elementary and secondary schools. This was a classic case of “distinction
without a difference” when both principles were exactly the
same.
Associate Justice Anthony Kennedy
disagreed with Roberts stating a “compelling interest exists in avoiding racial
isolation.” However, Kennedy and four other justices agreed that the assignment
plans were not “narrowly tailored.” Race-neutral means should have been
explored before resorting to a process that considered the students’ race. This
created the 5-4 ruling against the school districts. Parents Involved makes efforts to achieve student body diversity in
elementary and high schools extremely burdensome and difficult.
Disparate Impact Cases
In
another case, Ricci v.
DeStefano (2009), the Roberts court ruled that white firefighters in
New Haven, Connecticut, were victims of discrimination because they were not
promoted after passing tests for lieutenant and captain positions. The test
results were discarded after it was shown the test-based promotions would have
excluded a disproportionate percentage of African American test takers. The majority held that New Haven
acted with an intent to discriminate against the white and Hispanic
firefighters.
To resolve what it viewed as a tension between the disparate
impact and disparate treatment requirements the majority in Ricci imported a standard from
affirmative-action jurisprudence under which race conscious actions by
government actors are constitutional only when there is a “strong basis in
evidence” that remedial actions are necessary.
This decision undermines long-standing disparate impact
jurisprudence in which race-neutral policies are unlawful when they exclude a
disproportionate percentage of racial minorities without a “business
justification.” This is exactly what the
promotional examinations would have done in this case. New Haven acted in
accordance with existing precedent. The Roberts majority upended well-established
precedent to the detriment of racial minorities.
Evidence of racial
resentment can be found in Associate Justice Samuel Alito’s concurring opinion
in Ricci. Alito described in detail his
rank speculation about events surrounding the decision not to certify the
firefighters’ examinations. He presented an elaborate scenario in which New
Haven’s Mayor was heavily influenced by Reverend Boise Kimber, an African
American minister. Alito depicted Kimber as an “angry black militant” who
intimidated whites by calling them racists in public settings. Under Alito’s
scenario, Kimber engineered the decision to prevent the white and Hispanic
firefighters from receiving promotions. According to Alito’s
fertile imagination:
Reverend Boise
Kimber… is a politically powerful New Haven pastor and a self-professed ‘kingmaker’ …On one occasion, ‘[i]n front of
TV cameras, he threatened a race riot during the murder trial of the black man
arrested for killing white Yalie Christian Prince. He continues to call
whites racist if they question his actions… [On another occasion] Rev. Kimber
told firefighters that certain new recruits would not be hired because “they
just have too many vowels in their name[s] “…After protests about this comment,
Rev. Kimber stepped down as chairman of the BFC… but he remained on the BFC and
retained “a direct line to the mayor.”
None of these claims was established at any trial. Alito
speculated that “a reasonable jury could easily find that the city’s real
reason for scrapping the test results was not a concern about violating the
disparate impact provisions of Title VII but a simple desire to please a
politically important racial constituency.” Alito portrayed Kimber as an angry
black bigot who frightened and intimidated whites. Kimber is an imposing,
dark-complexioned African American male. Alito’s harsh
portrayal fits the longstanding “Black Buck” stereotype; a large,
hot-tempered, threatening, black male who defies
white authority. Alito’s negative perception of Kimber suggests that he viewed Ricci through a fog of racial
stereotypes and saw the case as an example of less qualified blacks benefiting
from a “rigged” process that disadvantaged more deserving whites.
In 2013, the Supreme Court decided Fisher v. University of Texas. In
an earlier case, Grutter v.
Bollinger, the Supreme Court applied strict scrutiny and affirmed the
constitutionality of University of Michigan's affirmative action admissions
program. In Fisher the Court affirmed
Grutter’s ruling that student body
diversity is a compelling state interest.
The case focused instead on the
“narrow tailoring” requirement. The majority held that universities must show
that race-neutral alternatives would not suffice, stating “[t]he reviewing
court must ultimately be satisfied that no workable race-neutral alternatives
would produce the educational benefits of diversity.”
This reverses the burden of proof in
affirmative action cases and imposes on universities the nearly impossible
obligation to show there are no workable race-neutral alternatives. Affirmative
action survived Fisher hypothetically,
but not in reality. The Roberts Court achieved its goal of gutting affirmative
action.
Voting
Rights
In one of its most significant and
far-reaching decisions, the Roberts Court in Shelby County v. Holder, struck down the preclearance formula for the Voting Rights Act, gutting the law and
opening the door to voter suppression tactics. Under Section 5 of the Voting
Rights Act, states and jurisdictions, mostly in the former Confederate states,
had to submit voting law changes for pre-approval (“preclearance”) by the
Justice Department. Roberts wrote that the preclearance requirement was no
longer necessary because in his view, the tide of racism in America and the
South had receded. It was unfair, he contended, for the federal government to
discriminate against states to prevent them from discriminating against
minority voters.
The federal
government argued that the evidence on which Congress in reenacting Sections 4
and 5 included 15,000 pages of testimony, reports, and data regarding racial
disparities in voter registration, voter turnout, and electoral success; the
nature and number of Section 5 objections; judicial preclearance suits and
Section 5 enforcement actions; successful Section 2 litigation; the number of
justice department information requests; reports from federal election
observers; and evidence of racially polarized voting.
Rejecting the mountain
of evidence in the voluminous record developed during the 2006 Congressional
hearings, the majority found that preclearance was justified in the 1960s but
conditions have changed over the 50 years since the VRA was originally enacted.
The current record did not show the widespread and rampant discrimination that
was common in the 1960s.
What happened in the case was a Supreme Court majority
re-weighing the evidence that Congress amassed which is precisely what an
appellate court cannot do. This violates the well-established rule that courts are precluded from
re-weighing or reconsidering evidence during an appeal. There is another,
equally forceful principle that the Supreme Court should "invalidate a
congressional enactment only upon a plain showing that Congress has exceeded
its constitutional bounds." No such showing was made in this case. Roberts
ignored the extensive congressional record and arrogated to himself the
authority to re-weigh Congressional fact-finding when there was no basis for
doing so except to advance his anti-minority agenda. After the Shelby County decision, Republican-controlled states have rushed to
institute all sorts of voting restrictions that would otherwise have been
blocked.
Affirmative Action
In,
Schuette v. BAMN, (2014) the Court ignored
controlling precedent and overruled an appellate court’s pro-affirmative action
decision. The central question was whether an amendment to a state’s
constitution prohibiting race conscious affirmative action in university
admission decisions violated the Equal Protection Clause of the Fourteenth
Amendment.
The challengers in Schuette relied on Reitman v. Mulkey, 387 U. S. 369 (1967) in which voters amended the California Constitution
to prohibit any state legislative interference with an owner’s prerogative to
decline to sell or rent residential property on any basis. The Supreme Court
concluded that the state constitutional provision was a denial of equal
protection.
In another case, Hunter v. Erickson, 393 U. S. 385 (1969) voters amended a city charter to overturn a
Fair Housing ordinance and to require that any additional antidiscrimination
housing laws be approved by referendum. The Supreme Court found that under the
“political process” doctrine, by singling out antidiscrimination ordinances, the
city charter amendment “places special burden on racial minorities within the
governmental process,” making it as impermissible as any other government action taken with the
intent to injure a racial minority.
Relying on Reitman and Hunter the
challengers in Schuette argued that the
amendment placed special burdens on minority groups in a manner that violated
the Equal Protection Clause. Justice Anthony Kennedy delivered the opinion for
the three-justice plurality. Kennedy argued that the issue was whether the
voters of a state could choose to prohibit the use of racial preferences in the
decisions of governmental bodies. His opinion concluded that the attempt to
define and protect interests based on race ran the risk of allowing the
government to classify people based on race perpetuating the same racism such
policies were meant to alleviate. While voters may determine that some
race-based preferences should be adopted, it was not the role of the courts to
disempower the voters from making such a choice. The reasoning of Reitman and Hunter was rejected. This was another battle in the Supreme Court’s
war against affirmative action and other measures that seek to advance the
equal rights of African Americans.
Conclusion
The tide of racism in America and the
South has not receded nearly as much as Justice Roberts contends. If anything,
racial antagonism and hostility has grown as the nightly news reports of police
violence against African Americans demonstrate. Voter suppression tactics are
rampant. Roberts’ disingenuousness, lack of adherence
to precedent and his overturning decades of prior decisions shows that his "real"
agenda is anti-black.
