The pivotal decision came last Monday in a racial-gerrymandering case brought in North Carolina. Sharply split at 5-4, the justices ruled that carving out legislative districts solely to elect more blacks might violate the constitutional rights of white voters. After the 1990 census, North Carolina created two majority black districts. The state legislature acted at the behest of the U.S. Justice Department-then in GOP hands-which, in turn, appeared to be following what the Voting Rights Act of 1965 seemed to require. And in November, voters sent the state’s first black representatives to Congress since Reconstruction. The 12th District, won last November by Melvin Watt, is a geographical and topographical wonder. It runs a serpentine 141-mile path through eight counties from Durham to Gastonia, concentrations of the black population; in some places, the district is no wider than the interstate it follows. This kind of reapportionment, linking people who “may have little in common with one another but the color of their skin,” wrote Justice Sandra Day O’Connor for the majority, “bears an uncomfortable resemblance to political apartheid.” The court did not order immediate redistricting. Instead, the state will now have the chance, however difficult, to prove in lower courts that the 12th District was not drawn for racial reasons alone.
O’Connor’s charged invocation of apartheid underscores the deep racial divide both on the court and in American society. The nation founded on lofty notions of equality still suffers from its infamous history of slavery and Jim Crow. Blacks do better in America today than in the 19th century, but discrimination and its vestiges have hardly been eradicated. So what is the wisest policy when it comes to such a fundamental right as voting? Should judges interpret the constitutional promise of “equal protection of the laws” to be colorblind? Or are legislative prescriptions, which act affirmatively to remedy past discrimination, still necessary to give minorities a fair shake? “It’s a judicial and political debate that’s been going on for 25 years and was at the heart of the Lani Guinier controversy,” says law professor A.E. DickHoward of the University of Virginia. Since Congress passed the Voting Rights Act, the Supreme Court has approved most racebased remedies. O’Connor’s ruling suggests that the court now believes those means may not justify the ends.
It may be that the justices in the North Carolina case simply couldn’t stomach the especially weird shape of the 12th District. While O’Connor said “compactness, contiguity and respect for political subdivisions” should govern reapportionment, she did not rule out race as a factor to be weighed. Thus, the other 27 black-majority congressional districts may not be imperiled, particularly if their boundaries aren’t bizarre. Nonetheless, the 5-4 ruling seems to reflect a certain boldness on the part of the conservatives-a willingness to throw a judicial monkey wrench into an electoral system that has worked since the ’60s. After all, as Justice John Paul Stevens remarked in dissent, the majority chose to take on race as a redistricting issue, while ignoring the apportionment games that are played to protect, say, incumbents, rural voters or various ethnic groups.
Three days before the North Carolina decision, the court made it tougher for workers charging discrimination to prevail. Until last week, employers could be held liable simply if they lied about the reasons for firing an employee. Now the worker must prove that the actual reason was bias. “This was a totally gratuitous decision, much like the reapportionment case, “says law professor Norman Dorsenof New York University, a former president of the American Civil Liberties Union. “The court went out of its way to disturb a well-settled rule.” The five-justice majority was the same: O’Connor, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist.
Conspicuously absent from that quintet: Justice David Souter, who may be slowly moving to the left. Steady and cautious, he’s no William Brennai-the liberal lion he replaced and has since befriended. But he’s also not the overmatched jurist depicted in accounts of 1990-91, his freshman year on the court. His voice in support of women, minorities, prisoners and the mentally retarded is emerging; he was a partial dissenter last January when the court ruled that a 19th-century civil-rights law could not be used against Operation Rescue protesters blockading an abortion clinic. On religion cases, Howard calls him “the most Jeffersonian justice in his desire to separate church and state.” Souter’s brand of liberalism, however, barely affected the direction of the court. Last term, as Souter went, so went the court: he was in the majority in all but one of 14 votes decided 5 to 4. This term, he was on the losing side of most of the one-vote rulings.
_B_Reliable Right:_b_Souter’s tack to port puts to rest the myth of the Fearsome Threesome-the notion that Kennedy, Souter and O’Connor were navigating the court into the next century. Many of O’Connor’s decisions continue to be unpredictable this term she was more sympathetic to capital defendants-and she is the closest the court has to a bellwether. Kennedy, though, has largely gone back to being a member of the Reliable Right, joining Rehnquist, Scalia and Thomas. The conservatives’ dominance is all the more evident given Souter’s absence from it. Without him, and without Stevens or Harry Blackmun, there are still six justices from which to cobble together a majority.
Five, for now. One of them was Byron White, who retired last week. In his 31 years on the bench, White could be as idiosyncratic as O’Connor. But by and large, except in a few areas like school desegregation, the conservatives could count on White. His likely replacement, Judge Ruth Bader Ginsburg, figures to be much less reliable. Already liberals are licking their juridical chops over prospects that she could provide the fifth vote to undo decisions that went 5-4 for the conservatives with White in the majority. That would include recent rulings relaxing the prohibition of double jeopardy and allowing states to pay for sign-language interpreters for deaf students at parochial schools. The former ruling itself is a reversal of a 5-4 decision from 1990 favoring criminal defendants, when Thurgood Marshall was still on the court. Turnabout is fair play, right? But if constitutional law has become little more than realpolitik-who’s got the votes this week-then the politicization of the Supreme Court will be complete.
