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Social Science History 24.2 (2000) 423-427
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Subversive Law, Subverting Law
Larry J. Griffin
Symposium on J. Morhan Kousser's Colorblind Injustice: Minority Voting Rights
and the Undoing of the Second Reconstruction (University of North Carolina Press, 1999)
Colorblind Injustice is an angry, ambitious, and very valuable book. In it, Kousser argues that the Second Reconstruction—that is, the post-1965 edifice of law and institutions securing essential African American and Latino civil rights and effective political voice—has been disastrously undermined, possibly mortally so, by the distorted, ignorant, or malicious (and, ultimately, to Kousser, dangerous) misinterpretations of the history of American race relations and of the meaning of the nation’s voting rights laws and Reconstruction-era [End Page 423] constitutional amendments. The culprits in this tale include, among other members of the Rehnquist Supreme Court, Justices Sandra Day O’Connor and Clarence Thomas; political scientist Abigail Thernstrom, who believes that past discrimination against racial minorities never justifies race-conscious remedies; overzealous Republican (and Democratic, though more of the former than the latter) party partisans; and a lot of additional white politicians, officials, and judges ranging in localities from Los Angeles to North Carolina.
Whatever a reader may finally make of Kousser’s claim—and I myself raise a few questions about it later in these comments—the book’s moral seriousness, its undoubted timeliness, and its interventionist tone, empirical scope, and interdisciplinary synthesis of law, history, and social science are richly provocative, amply repaying the attention it demands from readers and, for some of them at least, no doubt unceasingly challenging their taken-for-granted assumptions about the extent and durability of the country’s racial progress since 1965.
Kousser’s final chapter, titled “History and Equality,” is as eloquent a brief for racial equality as virtually any I have read, and it suggests to me that Colorblind Injustice, for all of its concern with “getting the history right” and “setting the story straight” and with uncovering or generating novel statistical information, is really a cry—and an anguished one at that—from the heart. Indeed, I believe it fair to conclude that Kousser’s primary purpose here is more prescriptive than descriptive—namely, to persuade readers that the Second Reconstruction, particularly that component charged with voting rights and effective minority political representation, really is, right now, being systematically dismantled.
Kousser’s argument is that through a series of erroneous, partisan, and perverse judicial decisions in voting rights and voting dilution cases, the Rehnquist Court (a) raised the level of proof in antidiscrimination suits brought by racial minorities so that legal redress now requires “proof” of both discriminatory intent and discriminatory effect, and (b) barred the creation of what is known as “majority” minority electoral districts—so-called minority opportunity districts designed to increase black and Hispanic voting strength and electoral representation. This second development—a legacy of the Court’s 1993 ruling in Shaw v. Reno—is, to quote Kousser, “the harshest of ironies” because it has transformed the meaning of the Reconstruction [End Page 424] Amendments and the Voting Rights Act. In his words, “the Fourteenth and Fifteenth Amendments had prohibited disfranchisement and vote dilution; now, they prohibit pro-minority redistricting.” And whereas the Voting Rights Act once “prevented suspect states and localities from making electoral changes that decreased minority political rights; now, it prevents them from making changes that enhance minority political rights.” In sum, then, “institutions that benefitted minorities have been hijacked by the radical Supreme Court majority and turned into engines of oppression” (452–3).
This, obviously, is a harsh, and dispiriting, conclusion. Is it also persuasive? It is compelling, and more so, I think, than it might otherwise be because Kousser has amassed an enormous array of evidence to support his interpretation. He appears to have (a) mastered relevant case law (he cites almost 200 legal cases, some of which are subjected to intense, lengthy scrutiny, and seems to have devoured pertinent legal scholarship about them), (b) digested dozens of depositions collected for a racial gerrymandering suit in Los Angeles, and (c) reconstructed...