Uneasy Victories in the Supreme Court

By Laughlin Mcdonald

Vol. 8, No. 3, 1986, pp. 15-18

During the 1985-1986 term, the Supreme Court decided eight major race discrimination cases. Four involved employment discrimination and affirmative action, three involved jury selection and the seventh voting rights. In all eight, the basic positions (if not the specific remedies) advocated by minorities prevailed, while the restrictive interpretations of civil rights law urged by the Reagan Department of Justice were decisively rejected.

In the first of the employment cases, Wygant v. Jackson Board of Education, the Court held that a school board could not lay off non-minority teachers with more seniority than minority teachers who were retained as part of an affirmative action plan. The Court reasoned that "layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. The burden is too intrusive." Although minority teachers were denied a measure of protection in Wygant, the decision as a whole was a victory for affirmative action.

First, the Court indicated that race-conscious affirmative action plans, including the use of hiring goals, are constitutional as part of the nation's commitment to eradicating racial discrimination. Second, the Court rejected the Department of Justice's suggestion that affirmative action must be limited to


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specific, identifiable victims of past discrimination. Since it is often impossible to prove which particular minority would have been hired in the absence of discrimination, the adoption of government's position would have meant the end of meaningful affirmative action. Third, an employer can justify an affirmative action plan by showing a reasonable basis for concluding such a remedy is appropriate; an employer need not have, in fact, discriminated in the past.

In Sheetmetal Workers v. EEOC, the Court, building upon Wygant, held that an affirmative action plan to increase minority membership in a union could be required in cases of "persistent or egregious discrimination" or where necessary "to dissipate the lingering effects of pervasive discrimination." In the third employment discrimination case, Firefighters v. City of Cleveland, the Court upheld a voluntary affirmative action plan to hire minority firefighters even though it may have provided broader relief than a district judge could have ordered after a trial.

Finally, in Bazemore v. Friday, the Court ruled that the North Carolina Agricultural Extension Service had a duty to eradicate salary disparities between white and black workers, even though the disparities had their origin prior to the time federal anti-discrimination laws were made applicable to public employers.

The Court's employment discrimination cases are the most significant setback to date for the Reagan Administration's five and-a-half year crusade to eradicate hiring goals and restrict relief to the few identifiable victims of discrimination. In rejecting the Solicitor General's arguments, the Court frequently used strong language accusing the government of "misconceiving" controlling legal principles and "twisting" the meaning of applicable statutes. The rulings of the Court suggest that the Department of Justice under its present leadership has lost much of its institutional credibility, and that its arguments were viewed as part of a rightwing political campaign rather than as based upon the rule of law.

The Supreme Court also significantly strengthened the protection of minorities in jury selection during the last term. In Batson v. Kentucky, it held for the first time that a prosecutor's use of peremptory challenges to strike black jurors in a particular case violated the Fourteenth Amendment. The law prior to Batson had been established, ironically enough, in a case decided during the years that Earl Warren was Chief Justice, Swain v. Alabama. Swain held that a prosecutor's use of peremptory challenges was immune from judicial review, except were blacks were removed in "case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be."

The Swain standard, which was all but impossible to meet, had been increasingly criticized by legal commentators, while a number of lower courts had circumvented the decision by ruling that the use of challenges by a prosecutor to exclude blacks in individual cases violated the Sixth Amendent's guarantee of a fair and impartial trial or could be prohibited by a court in the exercise of its general supervisory powers. Despite the enlightened trend of dissatisfaction with Swain, the Solicitor General strenuously, and predictably, argued that a defendant could not establish a constitutional violation by showing "only" that blacks were systematically struck from the jury. The argument failed to persuade the Court.

In a second case, Turner v. Murray, the Court held that a capital defendant accused of an interracial crime had a constitutional right to have prospective jurors questioned about their possible racial bias. In the final jury selection case, Vasquez v. Hillery, the Court reaffirmed existing law that the exclusion of blacks from a grand jury was not harmless error, but required a new trial no matter how old the original conviction was.

In the last of the racial discrimination cases, Thornburg v. Gingles, the Court construed for the first time Section 2 of the Voting Rights Act. Congress amended Section 2 in 1982 to provide that voting practices are unlawful if they "result" in discrimination. Prior to 1982, an election law could only be invalidated if minority plaintiffs showed that it was adopted or was being maintained with a discriminatory purpose. The Court not only affirmed the constitutionality of Section 2, but significantly simplified the test for determining if an election plan using at-large voting was unlawful.

According to the Court, an apportionment plan violates Section 2 by causing impermissible vote dilution if the plan permits a bloc-voting white majority usually to defeat the candidates supported by a politically and geographically cohesive minority. Factors such as a lingering history of discrimination, racial campaign appeals, a depressed minority socioeconomic status, etc., which Congress had indicated in the legislative history were relevant to a vote dilution claim, were held by the Court to be supportive of, but not essential to, a Section 2 violation.

The new test adopted by the Court to measure vote dilution based on race is analogous to the one-person one-vote formulation that measures vote dilution based on population inequality. Both focus on racial patterns in election returns and in census data. Both avoid excesive investigation into historical and social factors and contain readily ascertainable standards for the lower courts to apply.

Thornburg also held that plaintiffs were not required to show that white voters were voting purposefully to exclude minorities from office to establish bloc voting, and that the election of a token or minimal number of blacks could not be used to defend an appointment plan which worked usually to dilute the minority vote. The latter ruling was a specific rejection of the Solictor General's argument in the case that Section 2 protected only token--not equal--minority political participation.

Despite the fact that the Court as a whole reiterated its commitment to racial equality this term, there was a significant degree of division among the individual justices. Seven of the eight discrimination cases were ideologically polarized, i.e., Brennan and Marshall (the left wing of the court) voted together and took a different position from that of Burger and Rehnquist (the right wing of the court) on one or more major issues. (See Table I)


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Table I: IDEOLOGICAL POLARIZATION IN RACE DISCRIMINATION CASES

JUSTICE BRENNAN/MARSHALL % BURGER/REHNQUIST %
Stevens 7 100 0 0
Blackmun 7 100 0 0
Powell 3 43 4 57
White 3 43 4 57
O'Connor 3 43 4 57

The margin for victory for civil rights resulted from the consistent support of the Brennan/Marshall position by Stevens and Blackmun, and the inability of Burger and Rehnquist to hold the votes of White, Powell, and O'Connor more than about half the time.

The importance of the White/Powell/O'Connor bloc can be seen from the fact that these three justices were more frequently in the majority than any other members of the Court. As Table II shows, O'Connor voted with the majority 89 percent of the time, and Powell and White 75 percent of the time. Burger and Rehnquist voted most frequently in the minority. (See Table II)

Table II: JUSTICES MOST FREQUENTLY IN MAJORITY OR MINORITY*

JUSTICE MAJORITY % MINORITY %
Brennan 7 70 3 30
Marshall 7 64 4 36
Stevens 7 70 3 30
Blackmun 7 70 3 30
Powell 6 75 2 25
White 6 75 2 25
O'Connor 8 89 1 11
Burger 4 50 4 50
Rehnquist 3 37 5 63
*This table treats opinions in which a justice concurred in part and dissented in part as both a majority and a minority opinio

Brennan, the senior exponent of the Court's liberal philosophy, was suprisingly influential on the term's discrimination cases. He wrote four of the eight majority opinions and was more frequently aligned with the other justices than any other member of the Court. As Table III shows, Brennan, Marshall, Blackmun, Stevens and Powell voted together at least half of the time. None of the other justices approached that level of agreement. (See Table III)

Table III: VOTING ALIGNMENT IN RACE DISCRIMINATION CASES 1985-1986 TERM*

JUSTICE BRENNAN MARSHALL STEVENS BLACKMUN POWELL WHITE O'CONNOR BURGER
Marshall 88%
Stevens 63% 25%
Blackmun 50% 25% 13%
Powell 50% 13% 13% 13%
White 38% 13% 13% 13% 25%
O'Connor 38% 0% 0% 0% 38% 25%
Burger 13% 0% 0% 0% 25% 13% 13%
Rehnquist 13% 0% 0% 0% 38% 13% 13% 38%
*To determine the frequency of agreement, the number of times two members of the Court voted together was divided by the eight race discrimination cases decided by the Court in which both justices participated. Justices were considered voting together only if they joined the same opinion, concurrence or dissent. Although justices occasionally voted together more than once in a given case, their alignment under such circumstances was given a value of 1.

The term's racial discrimination cases do not, of course, provide a full picture of the Court's general treatment of civil and constitutional claims. They also fail to show the Court's gross disregard for the rights of politically more vulnerable minorities, such as gays and Orthodox Jews. In Bowers v. Hardwick, for example, the Court ruled that the Constitution affords no protection from criminal prosecution to gays who participate in homosexual acts in the privacy of their homes. In another case, Goldman v. Weinberger the Court held that the military could forbid an Orthodox Jew from wearing a yarmulke, despite his sincere


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religious beliefs and the lack of any service-related need.

A court that turns its back on the deeply held beliefs of a religous minority and leaves the regulation of intimate relationships to the whim of a hostile majority, may in the long run provide scant protection for the rights of racial minorities. President Reagan has recently nominated the most ideologically inflexible member of the Court, Justice Rehnquist, to be Chief Justice. He has also nominated Antonin Scalia, another rigid conservative, to fill the vacancy created by the resignation of current Chief Justice Burger. More Reagan appointments would surely tilt the Court significantly to the right, jeopardizing the continued constitutional protection of the Nation's racial minorities.

Laughlin McDonald is director of the Southern Regional Office of the American Civil Liberties Union Foundation.