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Justice set aside.

The stinging clarity of Justice Ruth Bader Ginsburg's dissent was a welcome contrast to the Supreme Court's muddled June 12 decision in Adarand Constructors v. Pena that validated a lawsuit by a white highway contractor who lost out to a higher-bidding Latino-owned firm. That the "system of racial caste only recently ended," Ginsburg wrote, is "evident in our workplaces, markets and neighborhoods.... White and AfricanAmerican consumers still encounter different deals. People of color looking for housing still face discriminatory treatment by landlords, real estate and mortgage lenders." Anyone who thinks Ginsburg is wrong--that institutional racism is a thing of the past, no longer requiring broad legal redress--should turn to Andrew Hacker's important essay on page 45.

Ginsburg's dissent is a reminder of how central the Supreme Court nomination process remains to the course of racial justice, particularly since 75-year-old John Paul Stevens appears to be nearing retirement. (As with Harry Blackmun, who before stepping down reversed his support for the death penalty, experience on the Court has led Stevens to shift from his early stance as an affirmative action skeptic to an impassioned supporter.) This is especially evident if Ginsburg's remarks are compared with those of Clarence Thomas, who used both the Adarand case and the Kansas City school desegregation suit, decided the same day, to inveigh against "paternalism" in the legacy of the civil rights movement. The irony, of course, is that Thomas's elevation by two Republican Presidents, ultimately to the Supreme Court, was a caricature of affirmative action, a pure exercise in plantation politics.

The Adarand decision opens up far more questions than it settles. The five-Justice majority ruled that the minority set aside program challenged in the suit, and all similar affirmative action standards enacted by Congress, be subject to judicial review--the so-called "strict scrutiny" test. The Justices did not weigh the merits of Adarand's claim itself, and in her majority opinion Sandra Day O'Connor defended the broad concept of affirmative action even while virtually demanding more lower-court challenges. There are two problems with this equivocal reasoning, both based on rewriting or ignoring crucial history. First, as a practical matter in the courts, strict scrutiny is nearly always fatal--ironically, just about the only government action to survive it was the internment of the Japanese in World War II. Second, applying strict judicial scrutiny to affirmative action ignores the Fourteenth Amendment's clear language giving Congress the power to enforce the right to equal protection, an interpretation ratified by the Supreme Court in 1966 and never challenged. In effect O'Connor would make the courts the day-to-day arbiter of racial equality in the workplace; yet Congress entered the picture with the Civil Rights Act of 1964 only after judges up to and including the Supreme Court repeatedly sidestepped that very responsibility.

Beyond the courthouse doors, the politics of affirmative action are now moving with dangerous speed. California Governor Pete Wilson's decree ending state affirmative action programs not required by court order is only the first in a potentially explosive series of referendums and state legislative reforms. President Clinton--who in describing O'Connor's opinion as "not inconsistent" with his own views again distanced himself from the clarion arguments of his Solicitor General, Drew Days--has embarked on his own bureaucratic review of workplace equity programs.

The right has won some ground in this debate by suggesting that poverty rather than race or gender be grounds for special consideration in hiring. Coming from Republicans whose only vision of class equity is shoving more bodies into steerage, such rhetoric is a transparently cynical effort to manipulate the anger of downwardy mobile whites. But it begs a question that equal-rights defenders might consider engaging as this debate goes forward. So you want to talk about class? Fine: What would "affirmative action" for all the poor really mean?

In defending affirmative action against an unquestionably racist assault, it would be fatal to give Republican bootstrappers like Jack Kemp a monopoly on talking to the white poor. Civil rights organizations are properly suspicious of any gestures that could weaken the special recognition granted racial and gender discrimination by affirmative action laws. But directly confronting the right's seeming concern for class could offer an important route to a new national discussion-and new alliances--over poverty, race and power.
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Title Annotation:Supreme Court case 'Adarand Constructors v. Pena'
Publication:The Nation
Article Type:Editorial
Date:Jul 10, 1995
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