Article by Linda S. Greene
During 1989 the Supreme Court decided several important civil rights cases to which civil rights leaders responded with dismay. All these decisions concerned discrimination in employment and addressed a wide range of issues: whether white employees collaterally may attack court-approved consent decrees, the proof requirements in Griggs v. Duke Power disparate-impact cases, the applicability of Reconstruction era civil rights statutes to private discrimination, as well as the constitutionality of a local government program requiring contractors to employ minority subcontractors. In each of these cases, the majority of the Court employed formalistic and hypertechnical reasoning to limit the scope of redress for the racial inequities plaguing racial minority groups. In ingenious ways, these decisions explode the post-Brown assumptions about the existence of racial discrimination, the meaning and importance of racial discrimination, and the role of the judiciary in the redress of racial discrimination. These decisions contribute to the development of a legal structure in which racial inequities may be immune from legal redress and, perhaps more importantly, in which racial discrimination plausibly may be denied. In short, the 1989 Supreme Court decisions create barriers to changes in the racial status quo.
The civil rights decisions of the 1989 Term force us to refocus on a question presented time and time again, before and after Dred Scott: whether meaningful equality can be obtained for African-Americans through law. I will discuss these decisions by elaborating on several themes embodied in these decisions. These themes include formalism and equality, the tendency to interpret statutes rigidly, narrowly, and hypertechnically, thereby stripping them of transformative content; politics and equality, the tendency to reduce all questions of racial equality to political questions, thereby stripping constitutional legitimacy from racial civil rights; and the rights of whites and equality, the tendency to give legal legitimacy to the efforts of whites, who historically have benefited from racism, to maintain the racial status quo.
About the Author
Linda S. Greene. Professor of Law, University of Wisconsin; A.B., California State University at Long Beach; J.D., University of California, Berkeley.
Citation
64 Tul. L. Rev. 1515 (1990)