Constitutional Opinions / The Bad Brother

...The plaintiffs wanted the single-commissioner system replaced by a five-member commission elected from five single-member districts, one of which would be dominated by blacks (a 20 percent share...

...The Bad Brother by Terry Eastland 0 n June 24, in a front-page story on how frequently Justice Clarence Thomas agrees with Justice Antonin Scalia, the Washington Post's Joan Biskupic wrote that "their common pattern on opinions is that Scalia writes it up and Thomas signs it...

...Thomas therefore said of the DeGrandy case that it should have been dismissed for failure to state a claim...

...Reversing that judgment, Justice Anthony Kennedy's plurality opinion accepted as valid the court's understanding of Section 2, as elaborated in 1986 in Thornbury v. Gingles...

...perhaps predictably, he heard from four of them, in an opinion written by Justice John Paul Stevens, who accused Thomas of a "radical restructuring of the law...

...to vote on account of race or color...

...the complaint that the Florida legislature had diluted the voting strength of Cuban-Americans and blacks by creating too few districts dominated by majorities of both ought not be allowed under Section 2. The court is not likely soon to embrace Thomas's view of Gingles or Section 2, nor of the approach to statutory construction that undergirds the latter...

...Whether Thomas is out to recover colorblind law generally, or just in the voting rights area, he will continue to run up against enemies...

...The facts in the Shaw case, in which O'Connor worried about racial balkanization, were a revelation to many...

...Whatever Section 5 requires,they agreed, it cannot require that...

...The whole concern of the act," wrote Emory law professor Andrew Kull in his excellent book, The Colorblind Constitution (1992), "was to ensure nondiscriminatory access to the ballot...

...Because the opinion envisions a withdrawal of the federal judiciary from voting rights disputes, and because its author is black, the civil rights crowd that so bitterly opposed Thomas's nomination in 1991 took sharp exception...

...Section 2 provides that "no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen...

...wrote, "less talk about praying for the brother and more talk with the brother is in order...

...T he transformation of the Voting Rights Act was on bizarre display in the 1993 case, Shaw v. Reno...

...Both Section 5, which applies mainly to Southern states and localities, and Section 2, which applies throughout the country, became the legal instruments by which such bodies as the Justice Department, the federal judiciary, and the NAACP Legal Defense Fund facilitated the election of black (and later Hispanic) candidates...

...For him, the touchstone here as in other cases is the statute itself...

...Thomas's lengthy concurrence in Holder v. Hall is a courageous treatise on the Supreme Court's misguided voting rights jurisprudence...

...After all, why else would he compose such a comprehensive concurrence...

...So have been the facts in Holder and DeGrandy, and in a group of other cases (now in the lower courts) in which the Justice Department and its racial gerrymandering allies (including most members of the Congressional Black Caucus) have endorsed some strangely drawn districts...

...But Thomas's opinion is hardly radical: by contending that Section 2 permits only those challenges that "limit citizens' access to the ballot," his interpretation is in line with the statute's original meaning...

...In her plurality opinion, Justice Sandra Day O'Connor wrote that it was "unsettling how the North Carolina plan resembles the most egregious racial gerrymanders of the past...

...Concerned that such gerrymandering threatens "to carry us further from the goal of a political system in which race no longer matters," O'Connor suggested that the practice might be unconstitutional...

...T9F T homas reached this same conclusion by another route...

...In a major voting rights case decided six days later, it was Thomas who wrote it up—some fifty-nine pages in all—and Scalia who signed it...

...They lost in the district court but won in the court of appeals for the eleventh circuit...

...In the African American tradition," he said, "our definition of prayer is more than words...

...It's the assumption, he wrote, embedded in the Supreme Court's and the Justice Department's approach to vote-dilution cases, that "members of racial and ethnic groups must all think alike on important matters of public policy...

...Inevitably, its shape was racially determined...

...In the case at hand, said Kennedy, there's no objective way to do that...

...That case was wrongly decided, he argued, because it relied on dubious legislative history at odds with the wording of Section 2. Gingles should be overruled, he said, not only because it got Section 2 wrong, but also because its misinterpretation has proved "unworkable," miring the court in the inherently political task of creating standards for deciding "vote dilution" claims...

...There is no principled reason why one size [of government] should be picked over another as the benchmark of comparison...

...Very soon, however, the statute was refocused on electoral outcomes...

...Slithering for 160 miles along Interstate 40 in order to link up a majority of black voters, the new district alarmed five justices...

...An enemy like Benjamin Chavis is another matter entirely...

...If Chavis is upset by Thomas's decision, McCarthy Terry Eastland, co-author of Counting by Race (with William J. Bennett), is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center...

...This practice in the context of voting rights has been the most radical, although until recently the least publicly controversial...

...Not all of Thomas's colleagues were pleased with what he wrote...

...It may also imply a judicial strategy on Thomas's part...

...Wrote McCarthy, mockingly, "Since 'the brother' has lost his way, we his moral superiors at the NAACP will pray that the Lord can straighten him out...

...n his book, Andrew Kull writes that if the United States is to recover colorblind law, which it formally embraced in the 1960s, the Supreme Court is the critical unit of government because, "alone among American institutions, [it] retains the power to deflect what will otherwise become an irreversible tendency toward the convenient and destructive practice of allocating social resources by racial and ethnic groups...

...3, The American Spectator September 1994 55 The American Spectator, 2020 N. 14th St, Suite 750, Arlington, Virginia 22201...

...The principle by which the court has created such standards, Thomas wrote, is precisely the one that the Voting Rights Act condemns: "proportional allocation of political power according to race...

...Kennedy held that Section 2 can't be used to challenge the size of a governing authority...

...Chavis appeared to threaten Thomas with something more than prayer...

...Biskupic spoke too soon...

...Indeed, he identified one of them in his opinion...

...This assumption, Thomas writes, "should be repugnant to any nation that strives for the ideal of a colorblind Constitution...

...On July 10, executive director Benjamin Chavis opened the NAACP's annual meeting by asking the 4,000 assembled to "pray" for his "brother" because he had ruled against those "trying to get some voting rights for African Americans...

...This was too much even for the pacifist-liberal columnist Colman McCarthy, who paddled Chavis for "overweening arrogance...

...Perhaps Thomas has decided that the way back to colorblind law lies through an area (voting rights) in which, issues of statutory and constitutional interpretation to one side, the threat of proportional entitlements by race and ethnicity can be most clearly demonstrated to the public at large...

...After the 1990 census, North Carolina proposed creating one black-majority congressional district...

...They claimed that the single-commissioner system violated Section 2 of the Voting Rights Act by "diluting" the voting strength of blacks, who make up roughly 20 percent of the county's eligible voters and have never cast a vote for a black candidate for commissioner, as none have run...

...Acting under its Section 5 authority to object, the Bush Justice Department said the state had enough blacks to warrant a second black-majority district...

...It is, in accord with the classic understanding of an opinion of this kind, written for another day and indeed another court...

...11 56 The American Spectator September 1994...

...Indeed, Thomas's opinion—and not the turgid and deceptive writings of Lani Guinier—defines the kind of talk that should take place both within and outside the Supreme Court regarding the Voting Rights Act...

...We need to bring him to the prayer house...

...In the Holder case, several black citizens of Bleckley County, Georgia, and the local chapter of the NAACP took on the county's form of government (created in 1912), in which a single commissioner exercises all legislative and executive power...

...This is a bold opinion, treating as it does controversial matters of statutory construction and stare decisis (to stand by decided matters...

...The court said that in a vote dilution suit, a court must find a reasonable alternative benchmark against which to measure the challenged voting practice...

...Thomas engaged in a lengthy discussion of this language in concluding that the size of a governing body isn't a "standard, practice, or procedure" and therefore can't be challenged under Section 2. What's more, he said, the statute does not allow "for any claims of what we have called vote `dilution.'"1 Thomas squarely criticized the court for condoning Section 2 vote-dilution claims in Gingles...

...The new, if unspoken, goal became proportional representation by race...

...In Holder and in another case decided on June 30, Johnson v. DeGrandy, the court was asked to interpret Section 2 of the statute, enacted in 1965 to enforce the Fifteenth Amendment's protection of the right to vote against denial or abridgment on account of race or color...