The Congressional Black Caucus, Minority Voting Rights, and the U.S. Supreme Court

1. Competing Approaches to Law and Voting Minority Rights

1 | Competing Approaches to Law and Voting Minority Rights “Whatever law protects the white man shall afford equal protection to the black man. Whatever means of redress is afforded to one shall be afforded to all.” —Senator Thaddeus Stevens “Why not come out plainly and frankly to all the world and say what we mean? . . . Give us, then, the colored man, for that and that only is the object that is now before us.” —Senator Jacob Howard Introduction The central premise of this book is that black voting rights and political representation are caught between con›icting approaches to the Constitution and the Voting Rights Act (VRA). These con›icts are illustrated by the contrast between the race-conscious advocacy of the Congressional Black Caucus (CBC) and the Supreme Court majority’s color-blind jurisprudence . Extending the caucus’s position, the central claim in this chapter is that an exclusively color-blind approach to minority voting rights greatly oversimpli‹es the dynamics of race, representation, and political power. Moreover, it overlooks the race-conscious framing and original intent of the Fourteenth Amendment, along with the Court’s initial and race-conscious interpretations of it. Of course the Court long ago declared itself the ultimate interpreter of constitutional and statutory law.1 The founding fathers also charged the Court, implicitly at least, with balancing minority and majority interests. What is less clear is whether America’s founding fathers intended for the Court to trump legislative intent in the process of striking such a balance. In today’s context, a colorblind voting rights jurisprudence risks perpetuating persistent inequities 17 between whites and racial minorities. For example, abundant evidence shows that blacks running for Congress still have great dif‹culty winning elections in anything but majority-black districts.2 In this respect, minority voters and candidates are trapped between con›icting interpretations of the law. The Court majority’s presumptive suspicion of benign race consciousness in the face of continued racial discrimination resembles the concept of cognitive dissonance: “the feeling of psychological discomfort produced by the combined presence of two thoughts that do not follow from one another, in which the greater the discomfort over them, the greater the desire to reduce the dissonance between them.”3 The Court exhibited this condition in the 1990s districting cases when it asserted that minority of‹cials elected by majority-minority districts would not suf‹ciently represent their white constituents, despite evidence to the contrary and without considering the long tradition of white nonresponsiveness to black constituents. Such dissonance also recurred ten years later in the realm of higher education admissions. While the Court upheld Michigan’s use of race as a factor in its graduate admissions policy on the grounds that the state’s interest in a diverse student body remained compelling, it also drafted a sunset clause of sorts by holding that “the use of racial preferences will no longer be necessary to further the interest” of racial diversity in higher education after twenty-‹ve years.4 This chapter frames the debate between the CBC and the Supreme Court over how to protect black political power from subordination by majority political interests. While the Court majority has staunchly espoused color blindness since the early 1990s, the CBC has advocated a race-conscious approach in the amicus curiae briefs it has submitted in a series of cases involving redistricting and minority voting rights. In so doing , the caucus is continuing a tradition established by black leaders dating back to at least the revolutionary era. In pursuing its mission as the “conscience of Congress,” the CBC attempts “honestly to state what [its] opponents and [its] opinions really are” and to engage “in the real morality of public discussion.”5 In this manner, the caucus has sought to expose gritty truths about race and representation despite the political dangers of doing so. The Court has exchanged a good deal of cross ‹re across its own turf as well, particularly over the majority’s assumptions about color blindness and representation in the 1990s districting cases. The Court as a whole acknowledges that the VRA, including various amendments to it, has fostered racial diversity among elected of‹cials in Congress and elsewhere. 18 | The CBC, Minority Voting Rights, and the U.S. Supreme Court Yet the majority’s perception of substantive, descriptive, and symbolic modes of representation is that they are mutually exclusive. Moreover, a racial-group...