Strange Justice

Yesterday marked the twentieth anniversary of one of the great wrong turns in American civil-rights history, a grotesque decision that helped those who falsely and nonsensically believe that eliminating federal efforts to establish racial equality will somehow, in and of itself, establish racial equality. The horror of that day still reverberates, the pain of that moment still sears.

On June 12, 1995, the United States Supreme Court, in a ghastly 5-4 decision known as Adarand Constructors v. Pena, gutted the legal infrastructure upholding the country’s affirmative action programs:

In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ‘strict scrutiny,’ it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.

“Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constitution’s guarantee of equal protection of the laws protects “persons, not groups” of people.

“It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”

O’Connor and her conservative court colleagues effectively struck Rep. John Lewis in the head one more time with this disgusting and destructive ruling, which was, of course, seized upon by right-wing ideologues to block pathways to black progress. The Adarand decision represented the Supreme Court’s shout-out to those who believed that the federal government had done too much to combat past and present-day discrimination.

Perhaps the most repugnant aspect of this decision was the concurring opinion written by Justice Clarence Thomas–an opinion that rhetorically lynched his own black brothers and sisters. Then-TIME Magazine columnist Jack E. White was correct beyond refutation when he observed:

These days Washington seems to be filled with white men who make black people uneasy, like Newt [Gingrich] the slasher, Bill [Clinton] the waffler and Jesse the crank—Helms, that is, not Jackson. But the scariest of all the hobgoblins may well be a fellow African American, Supreme Court Justice Clarence Thomas. In the four years since George Bush chose him to fill the “black seat” vacated by Thurgood Marshall, Thomas has emerged as the high court’s most aggressive advocate of rolling back the gains Marshall fought so hard for. The maddening irony is that Thomas owes his seat to precisely the kind of racial preference he goes to such lengths to excoriate. And as long as he is on the court, no other black need apply: Thomas fills a quota of one.

The most disturbing thing about Thomas is not his conclusions, but his twisted reasoning and bilious rage. In his written opinions, he begins with premises that no self-respecting black would disagree with, then veers off into a neverland of color-blind philosophizing in which all race-based policies, from Jim Crow laws designed to oppress minorities to affirmative-action measures seeking to assist them, are conflated into one morally and legally pernicious whole. He delights in gratuitously tongue-lashing the majority of blacks who disagree with him on almost every civil rights issue. He heaps scorn on federal judges who have used the bench to enforce and expand civil rights, accusing them of a paternalistic belief in black inferiority…

[Thomas] does not hesitate to incorporate dubious theories into his opinions when they suit his purposes. In his brief concurring opinion in the court’s Adarand Constructors v. Pena, in which the court suggested that federal set-aside programs for minority contractors may be unconstitutional, Thomas wrote, “Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.” That claim reflects the wisdom of Gingrich country, where, as the House Speaker opined last week, most problems poor black people face are caused by their own “bad habits.”

What Thomas, O’Connor and their right-wing friends will never admit is that bigotry will always be with us; it is hard-wired into our very nature, and thus the federal government will always need to take measures to ensure that bigotry does not strangle the aspirations of Americans of color. To that end, there will never be a day that we can get rid of affirmative action. We will always need goals, timetables, set-asides, preferences and yes, even the dreaded quotas, as they are nothing more than tangible measures by which we seek to reduce racial inequality.

The Adarand decision did great violence to the dream of racial equality. It empowered aggrieved right-wing whites to attack affirmative action programs with vicious vehemence, and put white progressives on the defensive against dubious claims of so-called reverse discrimination. The case was a victory for right-wing ideology, but a profound and deep loss for racial justice.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.