Response to Commentaries

The often kind and always interesting comments of Larry Griffin, David James, and Bradley Palmquist touch different aspects of Colorblind Injustice. Let me respond to them, in effect, in chronological order, according to which periods of history illuminate the comments the most.

Palmquist points out that institutions like the Supreme Court may suddenly reverse their decisions, as the Court did in the “switch in time that saved nine” after FDR had proposed to pack the body in 1937, or as it overturned Plessy v. Ferguson (1896) in Brown v. Board of Education (1954). But as the Brown example suggests, it often takes a long time to overturn precedents, and that is the case with minority voting rights, as well. It was 25 years after Richard Nixon’s “southern strategy,” 24 years after Earl Warren ceased to be Chief Justice, and 23 years after Nixon proposed to water down the Voting Rights Act before the overwhelmingly Republican Supreme Court dared to seriously undermine African American and Latino political rights. Even then, they hesitated to attack the Voting Rights Act itself directly. Major institutions are tough in two senses: their policies often have large impacts, and the institutions, including those as tiny as the nine-member Supreme Court, are difficult to change.

Palmquist also calls for clarification about the connection between political stability and policy changes that affect minority groups and, more generally, about the interactions between political and policy changes. These are complicated matters, but let me add to what I said in my introduction in this volume. Large policy changes—for example, the Thirteenth, Fourteenth, and Fifteenth Amendments; the massive expansion of the American national regulatory/welfare state during the New Deal; and the assault on segregation and discrimination during the 1960s—require overwhelming partisan majorities in Congress, though not necessarily of members whose constituents elected them to impose exactly those policy mandates. A great deal of voting is retrospective and negative—a rejection, for example, of the slavocracy, the soulless engineer of the Great Depression, or the Goldwater extremists. So much is uncontroversial. I wish to emphasize here the importance for discrete and insular minorities of what Thomas Kuhn (1962) called the periods of “normal science,” not of his more famous formulation of “paradigm shifts.” It was in these nonrevolutionary periods that African Americans lost the vote and later expanded their political power. And what is necessary to preserve and enhance the gains of minorities in those critical, but often overlooked periods is slow turnover in the people who serve in those authoritative institutions and a willingness on their part to make incremental changes as they learn by doing and respond to incentives to cooperate with partisan opponents on issues that are not essential to their constituents. Other things being equal, minority groups should prefer legislatures that are characterized by longevity and logrolling.

Consider two situations: In the first, the percentage of the vote for Republican congressional candidates over a 36-year series of elections averaged 52 percent, but the proportion of seats won fluctuated wildly, ranging, for instance, from a third in one election to more than nine-tenths four years later. In the second, covering the same number of elections, the Republican vote averaged 50 percent, but the range of seats won was much smaller, varying by no more than 20 percent in any four-year period. This describes elections during the First and Second Reconstructions, respectively, in the political heartland states of Illinois, Indiana, and Ohio, and my contentions are that the election outcomes were a function primarily of reapportionment, not voting behavior, and that the second, more stable set of congresses was much more favorable to progressive policy incrementalism for minority voting rights. The answer to another question Palmquist raises follows at once. Whatever the voting system adopted—cumulative or limited voting; single transferable vote; or...