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

6. Reconciling the Present with the Past

6 | Reconciling the Present with the Past “This so-called democracy has failed the Negro. . . . [T]he entire civil rights struggle needs a . . . broader interpretation. We need to look at this civil rights thing from another angle—from the inside as well as the outside . . . a new interpretation to the civil rights struggle that will enable us to come into it, take part in it.” —Malcolm X Revisiting the Supreme Court’s First Interpretations of the Fourteenth Amendment This book has explored the cross ‹re between the Congressional Black Caucus (CBC) and the Supreme Court majority over the role of race in redistricting , representation, and law. This cross ‹re is triggered by institutional debates over color blindness and race consciousness.What is the best method to eradicate racial discrimination and promote racial equality? Does color blindness guarantee equality? Under what circumstances is race consciousness constitutional? This book has emphasized the Court majority ’s overreliance on color blindness in key redistricting cases. It has also attempted to illustrate the general confusion over both concepts. Even a cursory examination of the rhetoric of black leaders from the antebellum era to the CBC indicates that color blindness has never been their sole or ultimate goal. The goal has been, and continues to be, racial equality, with color blindness but one means toward that end. Accordingly, black leaders have consistently endorsed race-based approaches to racial equality, as exempli ‹ed by the caucus’s position with Congress and the Court regarding redistricting and the Voting Rights Act (VRA). For its part, the Court majority endorses color blindness as the ultimate goal based on the presumption that color blindness will automatically lead to racial equality. In the 150 process, the justices tend to equate race-conscious districting with racist districting. These distinctions between means and ends and between race consciousness and racism tend to be lost on the Court majority. Since the landmark Brown v. Board of Education decision, the Court has superimposed its concept of color blindness onto the Fourteenth Amendment with respect to redistricting and increasingly treats race consciousness as antithetical to that amendment. This chapter explores the Court’s earliest interpretations of that amendment and compares them to the Court’s current applications of the Equal Protection Clause to cases involving race and redistricting. In the spirit of Malcolm X’s aspiration, I argue that early black political thought—considered with the Court’s initial approach to the Fourteenth Amendment—offers a “broader interpretation ”and a suitable fulcrum on which to balance contemporary tensions over race, law, and minority political power. The Fourteenth Amendment stipulates that certain rights may not be abridged by the state on the basis of color. As written, it applies to individuals and classes of individuals. Similarly, the Fifteenth Amendment classi‹es by race, color, and previous condition of servitude. These ‹rst two classi‹cations include people of African descent, while the third applies exclusively to them. The congressional record of the framing of the Fifteenth Amendment indicates that it “was to be as capable of growth as the capacity of Americans to mature.”1 Under the principle of color blindness , the Court’s decisions in Shaw v. Reno, Miller v. Johnson, and Shaw v. Hunt have hollowed out the Fourteenth and Fifteenth Amendments.2 As asserted by the CBC during legislative deliberations and in its amicus curiae briefs, a color-blind approach to racial equality risks perpetuating existing inequities. The caucus does not hold that color blindness is invalid or that it should be abandoned. It has contended instead that minority voting rights cases call for the Court to look squarely at rather than beyond race. In the CBC’s view, to simply will away race-based measures— as demonstrated by Chief Justice John Roberts’s facile conclusion that“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—is not merely wishful thinking but also potentially harmful thinking.3 The Court rightly recognizes that the institutions of slavery and segregation were premised on and designed to promote white supremacy and acknowledges the judicial branch’s complicity in decisions such as Dred Scott v. Sandford, the Civil Rights Cases, and Plessy v. Ferguson. Since rejecting these decisions, however, it has tended to overcompensate by presuming that all racial classi‹cations are suspect, regardless of their intent. In the Reconciling the Present with the Past | 151 process...