>> Thursday, February 04, 2010
Both the long and short book-length versions of his argument are worth reading, but Michael Klarman's remarks about the Supreme Court's generally poor record when it comes to the rights of African-Americans constitute a very useful summary. These points about the contingency of the Court's recent record are also important:
Because of cases like Roe, it's sometimes argued that LBJ's botched attempts to nominate Warren's replacement and Nixon's 4 quick appointees ended up not making much difference. But on the issues that Nixon cared about, it mattered. San Antonio v. Rodriguez and Milliken v. Bradley -- which combined lent the Court's imprimatur to schools that were both separate and unequal -- were both 5-4 with all of Nixon's appointees in the majority.
I would draw three lessons from the last forty years of the Supreme Court’s racial jurisprudence. First, most of these rulings have been five to four. Had there been one more liberal justice, many of these cases likely would have been decided differently. It was not predestined that the Court would reject race-based affirmative action, prematurely terminate the school desegregation project, or reject the argument that the Constitution bars racially disparate impacts regardless of discriminatory motive. Constitutional interpretation involves judicial discretion; judicial discretion reflects political ideology; and conservative justices tend, unsurprisingly, to subscribe to the conservative racial ideology of the party that appointed them. That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.
Second, while the political composition of the U.S. Supreme Court is partly fortuitous, the victories of the conservative bloc of justices since 1970 have predominantly been a function of politics. Between 1968 and 2008, Republicans controlled the presidency for twenty-eight years, Democrats for only twelve. Of the fourteen appointments made to the Supreme Court between 1969 and 2006, twelve were made by Republican presidents, most of whom prided themselves on their conservative politics. Because constitutional interpretation is so inextricably fused with politics, it should come as no surprise that justices appointed by presidents for whom very few black people voted would decide race-inflected cases in ways that contravened the preferences of most African Americans.