Eric Gay/Associated Press
Eric Gay/Associated Press
WASHINGTON – Has the nation lived down its history of racism and should the law become colorblind?
Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.
In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity. Just this last week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review as well to a Michigan law passed by voters that bars “preferential treatment” to students based on race. Separately in a second case, the court must decide whether race relations – in the South, particularly – have improved to the point that federal laws protecting minority voting rights are no longer warranted.
The questions are apt as the United States closes in on a demographic tipping point, when nonwhites will become a majority of the nation’s population for the first time. That dramatic shift is expected to be reached within the next generation, and how the Supreme Court rules could go a long way in determining what civil rights and equality mean in an America long divided by race.
The court’s five conservative justices seem ready to declare a new post-racial moment, pointing to increased levels of voter registration and turnout among blacks to show that the South has changed. Lower federal courts just in the last year had seen things differently, blunting voter ID laws and other election restrictions passed by GOP-controlled legislatures in South Carolina, Texas and Florida, which they saw as discriminatory.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Justice Antonin Scalia said in oral arguments earlier this year, suggesting that it was the high court’s responsibility to overturn voting protections overwhelmingly passed by Congress in 2006.
Justice Ruth Bader Ginsburg, part of the court’s more liberal wing, countered that while conventional discriminatory tactics may have faded, new ones have emerged. “Congress said up front: We know that the (voter) registration is fine. That is no longer the problem. But the discrimination continues in other forms,” she said.
The legal meanings of “equality,” “racism” and “discrimination” have been in flux since at least 1883, when justices struck down a federal anti-discrimination law, calling it an unfair racial advantage for former black slaves. Today, justices face the question of whether the nation has reached equality by a 1960s definition or some new standard.
By some demographic measures, America has reached a new era. But the latest census data and polling from The Associated Press also show race and class disparities that persist.
President Barack Obama, the nation’s first black chief executive, was re-elected in November despite a historically low percentage of white supporters. He was aided by a growing bloc of blacks, Hispanics, Asian-Americans and gays, and a disproportionate share of women, who together supported him by at least a 2-to-1 margin.
Another sign of shifting times: Among newborns, minorities outnumbered whites for the first time last year, the Census Bureau reported. “The end of the world as straight white males know it,” one newspaper headline said on the morning after the November election.