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If Supreme Courts over time are arranged like boxes of chocolates, the Roberts Court defies the myth that you never know what you’re going to get. From the first bite into its discrimination decisions, the bitter nougat was always at odds with its enticing packaging. Nicely arranged as a Valentine to the aspirations of the martyrs and soldiers of the civil rights revolution, the only real surprise in the Roberts box of chocolates is the breathtaking boldness with which the Court has resurrected the segregationist dreams of a bygone era with the lifeblood of the very Movement that sought it root and branch elimination.
In its stealthy but ruthless campaign, the Court has effectively liberated politicians, employers, and special interest groups from any meaningful constraints on their prerogatives toward historically racialized minorities. The double whammy is that at the same time, this Court has placed handcuffs on Universities, School Boards and democratic majorities who embrace the commitment to eliminating the barriers and obstacles to the full participation of America’s traditionally underrepresented minorities.
Indeed, a look at the tape reveals that the Roberts Court has been more effective at keeping the segregationists’ vision alive than all the previous Courts have been able to do to ensure that it fades into history: it laid school desegregation to rest in 2008, it placed affirmative action on life support in Fisher, it twisted employment discrimination law into a barrier against the most effective ways to prove discrimination, and it has used the success of the VRA as an indictment against the very provisions that made it successful.
In Shelby, the Court provided a sobering window into the magical logic that permits the Court to project its sins onto those it is chastising. Chief Justice Roberts framed its criticism of the Voting Rights Act around the idea that the vision of history employed by Congress is static and without nuance — preaching that history was not frozen in place in 1965. The Court suggests that things have changed, dramatically so, and yet the problem with the Voting Rights Act is that it refuses to acknowledge that transformation. Yet the very feature of the VRA that made it so successful is precisely its recognition that discrimination is not static nor limited to the past.
The VRA’s central observation was that strategies to deny political participation for racial minorities are in no sense solely represented in any particular set of practices that prevailed in the past. Congress recognized that discriminatory practices are dynamic re-inventions of exclusionary traditions limited only by the imagination of those seeking to maintain political advantage. The wisdom of the VRA stands as precisely the opposite of what the Court claims.
Indeed, It is precisely this dimension of the VRA that contributed to its great success. Rather than preclude any specific set of practices, or presume that each covered state begins with an entirely clean slate, the VRA shifted the burden of proof to actors who seek to defend electoral changes. It compelled them to demonstrate that these changes had neither the intent nor the effect of discriminating against minority voters. This dynamic approach to discrimination addresses rules as mundane as those determining election hours and polling places, to those that embrace far more complex matters such as the delegation of authority and the drawing of district lines. It embodies a much richer understanding of the barriers confronted by minority voters than the static and ahistorical approach proffered by the Court.
The wisdom of the VRA is that it did not simply presume good faith on the part of officials in the face of policies that might negatively affect the participation of minority voters. Nor did it automatically invest purportedly race neutral measures with legal sanction or feign agnosticism about the possible reasons that minority participation might be undermined.
As any close reading of the history of voting discrimination in this country reveals, efforts to circumvent the 15th amendment have been formally “race neutral’ since the earliest efforts to deploy grandfather clauses, poll taxes and constitutional interpretation requirements. Thus, Congress recognized that no list of prohibited practices would be expansive enough to guarantee the elusive right of political participation, and that new modes of discrimination are forged every day.
For this court, however, mere progress signifies the end of the problem, and the beginning of reverse discrimination and stigma. In this scenario, the serious under-representation of people of color across the social plane does not mean that a state, employer or any other entity still has work to do. If anything, it means that the Court should remain on guard to guard against continuing efforts to transform the social terrain lest it result in the unfair burdening of those who are racially empowered.
The Court’s vigilance in returning the reigns of power to the racially empowered is all the more disconcerting given its own reluctance to impose robust responsibilities on institutions to eliminate all vestiges of discrimination. In school desegregation cases, for example, School boards can be released from any responsibility to continue efforts to maintain integrated schools not on the basis of achieving a full and complete dismantling of all vestiges of discrimination, but instead on a far less robust standard that requires only a showing that the conditions have been redressed “to the extent practicable.”
The Roberts decision, unfortunately, imports this logic to the Voting Rights Act, and thus the signal achievement of the Civil Rights Movement is confined to the dustbin of history. The fact that hours after Shelby was handed down, practices that were deemed to be discriminatory under Section 5 were immediately renewed reveals that the Court has taken a side in a historical struggle that is anything but race neutral. That is a sweet victory to those who can now do what they want to minority voters, and a bitter game changer to all who believed the democracy might finally yield its long awaited promise.
Kimberlé Crenshaw is a Professor of Law at UCLA and Columbia Law School. She is a leading authority in the area of Civil Rights, Black feminist legal theory, and race, racism and the law. Her articles have appeared in the Harvard Law Review, National Black Law Journal, Stanford Law Review and Southern California Law Review. She is the founding coordinator of the Critical Race Theory Workshop, and the co-editor of the volume, Critical Race Theory: Key Documents That Shaped the Movement. Crenshaw has been executive director of the African American Policy Forum, a legal think tank since she co-founded it in 1996.