By John Yoo, The Sacramento Bee
In striking another blow against the use of racial quotas last week, the Supreme Court challenged the nation’s first minority president and Congress to help lead us to a post-racial America.
In Ricci v. DeStefano, New Haven, Conn., had refused to promote white firefighters who had received the highest scores on written and oral tests for lieutenant and captain positions because the right number of minorities had not passed, too.
An African-American ally of the mayor threatened city leaders with “political ramification” if they did not reverse the test results. In a public hearing, a black lieutenant exclaimed, “Listen to the Klansmen behind us,” when white firefighters applauded in support of the promotions. The city threw out the results, claiming that black firefighters would sue for racial discrimination.
A 5-4 majority dismissed the city’s argument. “All the evidence demonstrates that the city rejected the test results because the higher scoring candidates were white,” the court found. City politicians were more interested in pandering to racial interest groups than choosing the best first responders.
Before this ruling, a federal district judge had sided with New Haven, and a three-judge appeals court dismissed the case in a perfunctory, one-paragraph order. They willfully ignored the weighty legal issues involved, and even the Supreme Court dissenters found the appeals panel’s reasoning mistaken.
The panel included Supreme Court nominee Sonia Sotomayor, who has praised deciding cases with “empathy” and has said that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male” judge.
Though Ricci will not present a serious obstacle to Sotomayor’s confirmation, it suggests how her future colleagues view “empathy.”
“The dissent grants that petitioners’ situation is ‘unfortunate’ and that they ‘understandably attract this court’s sympathy,'” Justice Samuel Alito wrote. “But ‘sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law – of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”
The court decision rests solely on an interpretation of statutory law. It avoided the constitutionality of congressionally required efforts to reduce disparate impact (when a hiring practice yields a different racial composition of employees from the labor pool). However, as Justice Antonin Scalia predicted, the “evil day” will come soon when that question will arise. The court’s deep suspicion of racial set-asides in government contracts, redistricting, and elementary school assignments should give supporters of racial quotas little hope, especially as Justice Anthony Kennedy, the court’s crucial swing vote, almost never votes in favor of race-conscious measures.
Consider the recent decision in North Austin Municipal Utility Dist. v. Holder.
North Austin presented a case of “a small utility district raising a big question – the constitutionality of Section 5 of the Voting Rights Act,” Chief Justice John G. Roberts Jr. wrote. Under the 1965 act, Congress prohibited denying the right to vote because of race and abolished tests, taxes, and other means of disenfranchising Southern blacks. States that had used these despicable methods were forbidden from changing election law without Justice Department approval.
As Justice Clarence Thomas’ concurring opinion demonstrated, the 1965 act was justified because systematic “violence, intimidation, and subterfuge” had suppressed black voting registration to roughly 50 percentage points below white rates in Alabama, Louisiana, and Mississippi. Today, the black registration rate is 3 points lower in Alabama and 8 in Louisiana, but 1.5 points higher than whites in Mississippi. Black registration in nine of the states covered by the 1965 act is now the same or higher than the national average. Because the “emergency conditions” have passed, Thomas rightly found that the act’s freeze on state laws was no longer constitutionally justified.
Roberts’ opinion avoided this explosive conclusion, but allowed the utility to sue for removal from the law’s strict requirements. Like Ricci, the court limited its decision only to an interpretation of the act of Congress, not the Constitution.
By avoiding blockbuster constitutional rulings, the court is pushing President Obama to live up to his campaign promises.
Candidate Obama said it was time to move beyond identity politics. Part of his appeal was the hope that he could lead the nation into an era where, as the Rev. Dr. Martin Luther King Jr. said, children “will not be judged by the color of their skin but by the content of their character.” That requires us to discard extreme measures such as racial hiring and admission quotas or limits on state elections. While they might have been justified in the 1960s, to eliminate segregation root and branch, they are necessary no longer.
The Supreme Court has called on the president and Congress to introduce new measures that no longer manipulate race, and it is up to our elected politicians now to answer.
JOHN YOO is a columnist for The Philadelphia Inquirer and a former Bush administration Justice Department official; he teaches law at the University of California, Berkeley. Readers may send him e-mail at firstname.lastname@example.org.