Article by Alan Freeman
One wonders whether the majority still believes that race discrimination—or, more accurately, race discrimination against nonwhites—is a problem in our society, or even remembers that it ever was.
In early 1988, shortly after the 125th anniversary of Abraham Lincoln's Emancipation Proclamation, Anthony Kennedy joined the U.S. Supreme Court, replacing Lewis Powell, the conservative yet pragmatic appointee of Richard Nixon. Within a year, this reconstituted Court issued the first of several decisions that collectively would amount to the greatest setback to civil rights progress in a single Term of Court since the nineteenth century. The impact of the 1989 decisions was so dramatic as to parallel those of the post-Civil War Reconstruction Era. During that era, it took thirty-three years to go from the promise of the Emancipation Proclamation in 1863 to the bleak reality of the “separate but equal” doctrine endorsed by Plessy v. Ferguson in 1896. More recently, it has taken thirty-five years to go from the glowing promise of Brown v. Board of Education in 1954 to the “Civil Rights Cases” of 1989, which seem to enshrine the principle of “unequal but irrelevant.”
The arrival of Justice Kennedy indisputably prompted these decisions. Yet Ronald Reagan, who appointed Kennedy, also appointed Justices O'Connor, Scalia, and Rehnquist (as Chief Justice), all of whom were selected specifically for their opposition to affirmative action. That opposition was clearly articulated in Reagan's electoral campaign. Members of minority groups understood Reagan's message, and few supported him. Thus, the demise of the civil rights era, signaled by the defeats of 1989, may well illustrate the responsiveness of the American political system—the “people” received exactly what they wanted from their popular, landslide president.
To invoke the people by name is to evoke the image of authentic, responsive, participatory democracy. Reality bears no relationship to this image in a country in which ten percent of households own seventy-two percent of the wealth; in which effective political campaigns present clever, manipulative, and stereotypical images that pander to the most irrational fears of voters; in which no more than half the eligible voters participate in national elections; and in which no national political party represents the poor, the powerless, and the oppressed. Nevertheless, many who voted for Ronald Reagan believe that racial discrimination is a thing of the past, abolished by numerous laws enacted in the 1960s, and, further, that if racism still exists, it is not their fault. Additionally, many believe that blacks and other minorities luxuriate in preferential treatment at the expense of victimized and innocent whites. They believe that if minorities have not benefited from antidiscrimination laws and remain poor and powerless, it is their own fault for not mustering the skill or will to make it. It is tempting to dismiss the proponents of such views as mindless, uncaring racists who refuse to acknowledge the objective plight of minorities in America in the late 1980s. Yet that temptation must be resisted because the very same views, however despicable, are now enshrined in Supreme Court opinions, and thereby possess a frightening degree of cultural legitimacy.
This Article will suggest that today's views are not the product of recent historical whimsy, but rather, are firmly rooted in the contradictory character of antidiscrimination law, the agenda of which was constrained from the outset by abstract principles of formal equality that surely would reassert themselves in time. It is sadly ironic that our courts, which offered for a time a promise of liberation from America's historical reality of caste-based oppression and did secure some rights of equality, have also served to legitimize the persistence of rampant, racially identifiable inequality. To understand how that happened, one must look to opinions of the U.S. Supreme Court, a principal source for discovering the meaning of “civil rights.”
That Court looms large in our culture. We look to its pronouncements not just for the answers to particular questions of law, but for moral guidance on our most troubling social and political issues. The Court is basically a storytelling institution. Its cases serve as instructive moral parables, presented to most people as stark, melodramatic media distillations. The Court's stories must engage dialectically with other dominant political institutions, pre-existing cultural assumptions, and other sources of cultural authority (e.g., movies). In the long-run, the Court offers a vision of America that normalizes the existing patterns of inequality and hierarchy.
This Article will focus on antidiscrimination law as it has evolved in Supreme Court opinions since 1954. After an opening section that depicts the contradictory character of antidiscrimination law, I will trace the evolution of the legal doctrine in this area to illustrate the complex and dynamic interaction of image and reality. Finally, this Article will seek to situate the doctrinal history in a larger social and political context.
About the Author
Alan Freeman. Professor of Law, SUNY/Buffalo School of Law. A.B. 1964, Brown University; LL.B. 1967, New York University.
Citation
64 Tul. L. Rev. 1407 (1990)