THE END OF THE SECOND RECONSTRUCTION
MILLER, ARTHUR S.
The Supreme Court says it's over End of the 'Second Reconstruction' BY ARTHURS. MILLER "Have some wine," the March Hare said in an encouraging tone. Alice looked all around the table, but there...
...Marshall could not have stated the essential problem in plainer language: "If this Court refuses to honor our long-recognized principle that the Constitution nullifies 'sophisticated as well as simple-minded modes of discrimination' it cannot expect the victims of discrimination to respect political channels of seeking redress...
...Neither Republicans nor Democrats, save in purely local elections (as in Andrew Young's victory in Atlanta's mayoralty election), need fear the power of black voting...
...For the first time since the Hoover era," Benjamin Hooks of the National Association for the Advancement of Colored People said last fall, "all three branches of the Federal Government are viewed by many to be acting against the poor, the handicapped, blacks, and other minorities...
...No one tried to ensure that public facilities were in fact equal, although they were fully separate...
...The Supreme Court seems equally uninterested in the needs of the poor, regardless of racial background...
...Second, it is tacitly assumed that even if social turmoil erupts, it can be isolated and contained—and savagely repressed, if necessary...
...and Thurgood Marshall stand—futilely, now—against the tide of reaction seeping through the Marble Palace...
...Why that is so the Justices did not say...
...But then came Washington v. Davis and its progeny...
...So they are...
...Again dissenting sharply, Justice Marshall called the Court "an accessory to the perpetuation of racial discrimination...
...So, too, in the states: bloc-voting in New York, for example, might have reelected Jacob Javits to the Senate but did not...
...The Second Reconstruction is over...
...But few realize that the Supreme Court is industriously turning back the clock on specific questions of discrimination...
...But these rulings have been reduced to relative insignificance by a parallel development that makes it ever more difficult for blacks to win in court when racial discrimination is alleged...
...Historically the law has held otherwise...
...President Reagan's lukewarm, belated endorsement of extension of the Voting Rights Act of 1965, by all odds the most effective civil rights statute on the books, is matched by a Congressional eagerness to outdo the White House in gutting social programs...
...Alice in Wonderland Black Americans today have every reason to think they have stepped through the looking glass and stumbled into Wonderland by mistake...
...In that case, a street running between a white enclave and the black ghetto was blocked off, ostensibly to reduce traffic, noise, and litter, and to ensure safety for children...
...But no one knows how to prove an improper motive—a subjective state of mind—when the paper record looks good...
...He warned that a "superficial tranquility" created by the "impermeable" and "specious" requirement of intentional discrimination might be short-lived...
...So has the Supreme Court...
...There isn't any," said the March Hare...
...don't see any wine," Alice remarked...
...Consider the Supreme Court's April 1981 decision in City of Memphis v. Greene...
...So it was: Only a few days after his dissent, Miami exploded in rioting after the alleged murder of a black citizen by police officers...
...Besides the Memphis example, there was the 1980 ruling in City of Mobile v. Bolden that Mobile's at-large system of electing city commissioners was valid, even against claims that the system, established in 1911 before blacks could vote, made the election of any black candidate virtually impossible...
...Why then has this subtle but certain shift occurred...
...The best fhat can be hoped for from her is the unpredictable pragmatism of Stewart...
...Blacks promptly challenged the closing as a "badge of slavery" prohibited by the Thirteenth Amendment, and as a violation of the Civil Rights Act of 1866...
...as Chief Justice Salmon Chase stated in 1869, "We are not at liberty to inquire into the motives of the legislature...
...That decision made it constitutionally proper for whites, throughout the nation but principally in the South, to discriminate openly against blacks...
...They hear inspirational talk from President Reagan while at the same time they see his chief aides busily chopping away at the gains they have made in the past three decades...
...There isn't any," said the March Hare...
...True, in a few highly publicized (and heavily criticized) "affirmative action" cases, blacks have won at least nominal victories...
...Plaintiffs now must prove that the alleged discrimination was intentional...
...The First Reconstruction began after the Civil War, when the Thirteenth, Fourteenth, and Fifteenth Amendments were added to the Constitution as express guarantees of equal treatment under the law for newly freed black Americans...
...Today the Justices are aiding in the perpetuation of that class—not overtly, to be sure, but subtly...
...But not in the Supreme Court...
...The import of the ruling is clear, as Justice Marshall said in dissent: "A group of white citizens has decided to act to keep Negro citizens from traveling through their urban 'Utopia,' and the city has placed its seal of approval on the plan...
...led to believe that the Supreme Court has an interest in promoting racial equality...
...The Court is already packed with Nixon appointees—Chief Justice Warren Burger and Justices Harry A. Blackmun, Lewis F. Powell Jr., and William Rehnquist...
...The Justices have picked up on an old liberal trick: More and more, they view racial discrimination as merely the misguided conduct of a few identifiable people, rather than as the widespread, institutionalized phenomenon it is...
...Although they were shown that the city was indifferent to black demands for better municipal services and employment, the Justices held firm: Discriminatory purpose had to be shown, through proof that government took action "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon identifiable groups...
...Blacks may be hit harder than whites by some High Court decisions, but that is shrugged off, as in the Memphis case, as an "inconvenience" or a historical accident...
...In the first place, blacks have been written off as an effective political force...
...We can only examine into its power under the Constitution...
...In so doing, they sent a clear message that the Court no longer believes the Federal Government has a responsibility to intervene in institutionalized racism and attempt to halt it...
...Reagan proved that he could win the Presidency without their votes...
...no discriminatory intent had been proved...
...By showing that they were adversely affected, they were able to win in the lower courts...
...Thus the Court is decidedly not a "super-legal aid bureau," as Justice Felix Frankfurter once remarked...
...In 1976, the Justices cavalierly overturned decades of constitutional law when, in Washington v. Davis, they said: "The basic equal protection principle is that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose...
...Congress seems to be controlled by mean-spirited reactionaries, the Executive by Neanderthals...
...The promise implicit in the Constitution—that all Americans will be treated decently—is no closer to fulfillment today than it was yesterday...
...The biggest losers are black Americans, who, since the breakthrough 1954 decision in Brown v. Board of Education, have been Arthur S. Miller, a constitutional law scholar, is the author of "The Supreme Court: Myth and Reality" and "Democratic Dictatorship...
...The Supreme Court is repudiating the promise of Brown by inventing the requirement that intention to discriminate must be proved...
...Add Justice John Paul Stevens, named to the Court by President Gerald Ford, and Sandra Day O'Connor, the first of what may be several Reagan appointees, and one sees little hope for progressive decisions...
...Blacks themselves are apathetic and place little hope in the political process...
...Discrimination is considered aberrational...
...But when the interpretation of these amendments was put to the test in Plessy v. Ferguson in 1896, the Supreme Court invented the separate-but-equal doctrine and read it into the Fourteenth Amendment's "equal protection" clause...
...The Justices have, in effect, declared a victory for blacks in their civil-rights struggles, rather in the manner of Senator George Aiken's proposal to end the war in Vietnam—let's declare a victory and come home...
...The Justices have quietly buried the idea of "disproportionate impact," under which governmental aqtion that hit blacks as a group harder than whites was ruled invalid...
...the Court focuses on the isolated, benighted bigot...
...I don't see any wine," she remarked...
...Alice looked all around the table, but there was nothing on it but tea...
...never mind the living or operative law, which comprises an uglier reality...
...The replacement of Potter Stewart by Sandra O'Connor will not change the Court's direction on race one whit...
...The Memphis decision is merely the latest in a series that extends back at least five years...
...In the majority's view the roadblock was a mere "inconvenience" to blacks...
...Third, there is the pretense that, save for an occasional aberration, discrimination has been eliminated...
...Our permanent, disproportionately black underclass is the product of the caste system thus legitimated by the High Court...
...In sum, the Second Reconstruction, heralded by Brown, has ended...
...A Nixon supporter in 1972, a Reaganite in 1976, Justice O'Connor is said to have had the un-publicized pre-nomination backing of her Stanford Law School classmate William Rehnquist, the most reactionary of today's Justices...
...This is apparent, to cite only one decision, in its ruling that the Hyde Amendment—which banned the use of Federal funds for abortions—passed constitutional muster...
...Social conditions that contribute to racial discrimination are left untouched...
...Victory in civil rights has been declared, and blacks are left to sustain their "victory" without Government support—exactly where civil rights law stood before 1954...
...Formal equality under the law has been achieved...
...Only ailing Justices William J. Brennan Jr...
...But even that is only a faint hope: O'Connor has brought to the Court an economic and political conservatism that seems sure to ally her quickly with Rehnquist...
Vol. 46 • February 1982 • No. 2
