Race Losing Its Place In Court Rulings

THE SUPREME COURT, adopting a more conservative and controversial stance regarding civil rights, is pushing a "colorblind" notion of justice by treating everyone the same, regardless of race.

The trend has emerged slowly, drawing scant attention in the past two years, but there is little doubt today that the nation's highest court has virtually abandoned the idea of giving minorities preferential treatment to help end racial inequality.

The mounting evidence comes in a review of the U.S. Supreme Court's most recently concluded term, during which a slim but solidly aligned majority of five justices furthered its retrenchment from race-conscious jurisprudence, pushing instead its notion that racial harmony is best achieved when the courts and the law are "colorblind," treating all the same.

This evolution is drawing criticism from civil-rights advocates, who call it naive, and praise from conservatives, who call it fair. But the new conservative dominance on civil rights has gone mostly unnoticed amid commentary on the recent emergence of a trio of moderate justices who have put the brakes on the court's swing to the right in other areas.

In two key rulings issued in the final days of the 1992-93 term, the high court displayed a hardening view toward race-based remedies to discrimination, which long have been favored by liberals.

The rulings, in cases involving job discrimination and voting rights, are in addition to the already tough stand the court has taken toward affirmative action and other politically charged issues that resonate with questions of race and racism.

"The court is more skeptical now about the use of race than at any previous time," said Paul Brest, Stanford University Law School dean. Brest, who has written extensively about race and the Supreme Court, says "The court is more clearly going to apply very strict standards to any use of race for remedial purposes than it was inclined to do in the past."

In the view of the controlling five-justice majority, building remedies for past discrimination around racial categories actually works to perpetuate racism - by carving out permanent niches for minorities, by reinforcing racial stereotypes and differences and, most importantly, by undercutting and even postponing the ultimate goal of a colorblind society.

It's also a trend that's been overshadowed by headlines given to the bloc of so-called moderate conservatives that last term prevented the demise of the Roe vs. Wade abortion ruling.

But while basic abortion rights were preserved, two justices who made up the purportedly moderate trio - Sandra Day O'Connor and Anthony M. Kennedy - have joined the court's staunchest conservatives and taken a hard-line view of racial preferences. The other three are Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.

The strength of this consolidated majority is expected to remain undiluted by the nomination of federal appeals Judge Ruth Bader Ginsburg to replace retiring Byron A. White.

"I think the general public does not understand how far right the Supreme Court has swung on civil rights," said Randall Kennedy, a Harvard law professor who specializes in constitutional law and race, and who once was a law clerk to Thurgood Marshall.

"There are five definite votes who are against remedial measures that explicitly take race into account," he said.

In the job-bias case, St. Mary's Honor Center vs. Hicks, the court on June 25, ruling 5-4, set out requirements making it more difficult to prove that discrimination was due to race, gender or religious prejudice.

Three days later, the court ruled 5-4 in a voting-rights case that congressional districts designed to give minorities a majority of votes may be unconstitutional and violate the rights of white voters. By its ruling in Shaw vs. Reno, the five-justice majority trimmed the scope of the Voting Rights Act of 1965, just as it had in another case a year earlier.

"The court is moving away from the Voting Rights Act, even casting a constitutional cloud over it," notes Laurence Tribe, a liberal constitutional law professor from Harvard. The majority opinions in both cases espouse what is called the colorblind theory.

"Racial classifications of any sort pose the risk of lasting harm to our society," O'Connor wrote in the voting rights case - as succinct a presentation of the colorblind argument as has been offered to date. "They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."

This view, pushed and refined perhaps most vigorously by Scalia, departs sharply from the classic liberal position, allowing for broader considerations of race, that held more sway several decades ago.

"In order to get beyond racism, we must first take account of race," Justice Harry A. Blackmun wrote in a 1977 case. "There is no other way. And in order to treat some persons equally, we must treat them differently."

And it was Blackmun who in a 1989 case attacked what he considered the court's verbal cover for rulings harmful to civil rights. The majority, in a job-bias case, had said:

"Neither our words nor our decisions should be interpreted as signaling one inch of retreat from . . . forbidding discrimination."

But Blackmun would have none of it. "You have to wonder whether the majority still believes that racial discrimination - or more accurately, race discrimination against non-whites - is a problem in our society, or even remembers that it ever was."

The most dramatic expression of the new majority's view came during the 1989 term, which featured a number of rulings viewed as setbacks by civil-rights leaders, some of which later were negated with adoption of the Civil Rights Act of 1991. The affirmative-action ruling in City of Richmond vs. J. A. Croson Co. was among the most prominent.

Writing what has since become a refrain for the majority view, Scalia said: "The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency - fatal to a nation such as ours - to classify and judge men and women on the basis of their country or origin or the color of their skin. A solution to the first problem that aggravates the second is no solution at all."

Marshall, two years from his retirement in 1991, strongly dissented, writing that Scalia was undertaking "a deliberate and giant step backward in this Court's affirmative-action jurisprudence. . . . The majority launches a grapeshot attack on race-conscious remedies in general." Since then, the extension of the colorblind principle to such areas as voting rights, job discrimination and the death penalty has won the applause of conservatives.

The court's trend toward a "colorblind" philosophy has alarmed even those civil-rights and legal scholars who concede that the effectiveness of some of the race-conscious remedies is open to debate. In the North Carolina redistricting case of a few weeks ago, Harvard's Kennedy, like O'Connor, questions the practical wisdom of the challenged district's contrived snakelike shape, but Kennedy nonetheless attacks O'Connor's legal analysis and colorblind theory.

"I'm not saying there is only one side to this, a `right' view - there is a real argument about the use of race in some of the remedial measures," Kennedy said. "What I am saying is the same judges who rule against the Voting Rights Act in Shaw are the same people who ruled in the majority in St. Mary's, a horrible result, and so when you have the same judges ending up on the same side over and over again you can rightfully ask, `I hear you talking the nice rhetoric, but what gives here?'

"The pattern is there - a grudging record on a range of cases, and the Supreme Court has put on the brakes everywhere in terms of the struggle against racial inequities in the U.S."