Article by Brian K. Landsberg
Robert Bork, while he was Solicitor General, once told the Supreme Court:
Race has been the political issue in this nation since it was founded. And we may regret that that is a political reality, but it is a reality. That's what the Fifteenth Amendment is about, what the Civil War was about. It's what the Constitution was in part about, and it is a subject we struggle with politically today.
Mr. Bork could have added that race has been among the principal issues confronting the Supreme Court since Dred Scott v. Sandford. It is no surprise, therefore, that race has occupied a central position on the docket of the Rehnquist Court during its first five years.
The rhetoric and issues of today's cases continue a dialectic that began in the latter half of the nineteenth century. Two cases from that era, the Civil Rights Cases and Plessy v. Ferguson, cast a shadow that reaches to the present. Several commentators have expressed fear that the Rehnquist Court will return race discrimination law to its condition during that period. It is time to develop an understanding of the race decisions of the Rehnquist Court, even though a definitive chapter cannot yet be written. To begin, let us review the legacy that faced the Court when Justice Rehnquist was elevated to Chief Justice in 1986.
During the first half of the twentieth century, race discrimination law very slowly escaped the legacies of the Civil Rights Cases, Plessy v. Ferguson, and the retreat of legislative and executive enforcement of the Reconstruction amendments. Both the holdings and the tone of these two cases endorsed a philosophy of white supremacy. In the Civil Rights Cases, the Court threw out a public accommodations law so that the black person would cease “to be the special favorite of the law.” The Court also concluded, in Plessy, that if “the enforced separation of the two races stamps the colored race with a badge of inferiority. . . it is . . . solely because the colored race chooses to put that construction upon it.”
The Warren Court (1953-69), along with the other branches of the federal government, formulated a broad antidiscrimination principle in cases like Brown v. Board of Education, Jones v. Alfred H. Mayer Co., and South Carolina v. Katzenbach. These cases wiped out the restrictions and accompanying philosophy of the nineteenth-century cases. It fell to the Burger Court (1969-86) to refine the meaning and mechanics of the antidiscrimination principle. The Burger Court fashioned remedial rules that recognized the inadequacy of prohibitory relief and therefore emphasized corrective and prophylactic measures in cases such as Swann v. Charlotte-Mecklenburg Board of Education, Albemarle Paper Co. v. Moody, City of Rome v. United States, and Fullilove v. Klutznick. With less certainty, the Burger Court began the task of defining the boundaries of unlawful race discrimination in cases such as Griggs v. Duke Power Co., Washington v. Davis, Regents of the University of California v. Bakke, City of Mobile v. Bolden, and McDonnell Douglas Corp. v. Green.
A study of the twenty-nine race discrimination cases that the Rehnquist Court has decided in the past five years reveals a mixed picture. As will be shown, the Court may be approaching a crossroad. While outlines of the Rehnquist Court's approach to discrimination law are emerging, crucial elements remain to be filled in. In a broad sense, the Court has solidified the place of an antidiscrimination principle in the constitutional pantheon. No compromise such as the one that followed the 1876 election seems conceivable today, and the fears that history will literally repeat itself seem hyperbolic. While the rhetoric of the Rehnquist Court fully embraces the Warren Court's major antidiscrimination decisions, the Court is split into two well-defined wings on race issues. The power of the two wings was balanced until Justice Brennan left the Court in 1990. The Brennan wing, which has shrunk from four to two Justices since 1986, would build on the foundations left by the Burger Court. The Rehnquist wing, now ascendant, is dissatisfied with the details of the Burger Court legacy, viewing that legacy as having weighted the balance unduly in favor of minority rights. The Rehnquist wing argues that it is seeking to arrive at a more equitable balance. These Justices perceive imbalance in the standards set for proof of discrimination and in the corrective and prophylactic principle. The practical result of this dissatisfaction is a search for balance between nondiscrimination and other values, suggesting for the first time since Korematsu v. United States that state interests may occasionally outweigh the value of nondiscrimination.
The Brennan wing, in contrast, places the rights of minority group members above other values. While both wings espouse the central value of nondiscrimination, each employs rhetoric and analysis that largely ignores the arguments of the other. This absence of a common ground, this failure to reason together, causes uncertainty about the future development of the law. The battle over doctrinal development evokes the images of war. The Brennan wing, in a tactical sense, occupies the high ground of reliance on a large body of precedent. The Rehnquist wing possesses the strategic advantages of the Reagan-Bush electoral dominance and the assured attrition of its opponents.
The emerging Rehnquist wing would pursue its goals through several significant doctrinal shifts. One shift would elevate the proof burdens for minorities seeking relief from alleged discrimination by recasting the burden of persuasion in disparate impact cases, applying “atomistic” analysis of disparate treatment claims, and discounting the continuing importance of the history of societal discrimination. A related shift would ease the burdens on whites seeking to show that race-conscious decisions discriminate against them by applying strict scrutiny to all such decisions and allowing collateral challenges of judicial remedies for discrimination against minorities. We see in recent cases the reciprocal relation between the disparate impact test and race-conscious affirmative action. The Rehnquist wing has narrowed the reach of the disparate impact test because of the concern that it would lead to the use of quotas. At the same time, the Rehnquist wing has denied the relevance of disparate impact as a justification for such race-conscious measures. The hallmark of these shifts is increased deference to facially neutral choices of decisionmakers and decreased deference to race-conscious choices designed to promote minority interests. These shifts rest upon the belief that the neutral market place will deal fairly with minority groups.
Measured quantitatively, most of the Rehnquist Court's race decisions to date fall well within the formal path established by its predecessors. That path leads to an expansive definition of protected groups, unease with the expansive coverage of reconstruction legislation that has been construed as targeting badges and incidents of slavery, strong protections against intentional discrimination, continued acceptance of reparative relief, and close scrutiny of race-conscious affirmative action. The tone of the Rehnquist Court's opinions unfailingly embraces nondiscrimination as an ideal. On the other hand, the Court has sharply deviated from the beaten path in its new-found hostility to disparate impact claims under Title VII. The opinions in disparate impact and affirmative action cases display all the hallmarks of a Court that has lost its bearings and has yet to chart out a new course.
At this early stage in the development of the Rehnquist Court's position on race discrimination law, perhaps it is not too late to suggest that the Court consider foundational questions. First, what evidence exists that the Burger Court rulings struck an improper balance? Second, to what extent does the Court rely on assumptions regarding the relationship between race and the behavior of both minority group members and alleged discriminators? Absent empirical evidence, what assumptions should the Court adopt in formulating legal rules? Third, is the Court's real concern with the way in which lower courts and other addressees of the nondiscrimination laws have responded or will respond to those rulings? Is that concern well placed, and if so, has the Rehnquist Court prescribed the correct cure? These three questions raise one final set of questions: Should the Court or the Congress be deciding the factual and policy issues on which these questions turn? Thus far, the Rehnquist Court has failed to devote adequate attention to these questions.
This Article provides an overview of the twenty-nine race discrimination cases that the Rehnquist Court has decided between the 1986 and 1990 terms. The overview begins with a statistical analysis of how the minority groups fared and how individual Justices voted. Part III then turns to nine major cases, which fall into two categories: six revolving around concepts of racial neutrality and three involving remedial issues. The racial neutrality cases include three in which the validity of race-conscious preferences was at issue and three concerning facially neutral practices that caused disparate adverse effects on members of minority groups. Next, the major themes of the racial neutrality and remedy cases are explored. It is argued that the Justices proceed from different assumptions regarding behavior and race and regarding remedial principles formulated by the Burger Court. In addition, the Article submits that the Rehnquist Court has engaged in selective activism, both in basing decisions on policy assumptions and in its treatment of precedent. The Article then observes some other themes animating Rehnquist Court decisions on race discrimination; it is here that the Rehnquist wing shows the greatest likelihood of developing schisms. After describing the scholarly reaction to the Rehnquist Court's record on race discrimination, this Article concludes that the Court is poised at a crossroad. One path leads to a relatively wholesale dismantling of the edifice erected by the Burger Court; the other leads to a remodeling of the edifice with the essential elements still in place.
About the Author
Brian K. Landsberg. Professor of Law, University of the Pacific, McGeorge School of Law. Chief, Appellate Section, Civil Rights Division, United States Department of Justice, 1974-1986.
Citation
66 Tul. L. Rev. 1267 (1992)