8 White Justices -- and the Odd Man


Washington. -- In the final dramatic moments of its 1992-93 session, the United States Supreme Court gave us new evidence that the issue of racial justice divides Americans as brutally and destructively today as it did during the Civil War.

Eight white justices divided evenly over what Justice Sandra Day O'Connor delicately called "the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups."

More bluntly, the issue was whether, after 125 years of white denials of the vote to blacks, and of districts gerrymandered to dilute or nullify black political power, a predominantly white North Carolina legislature could lawfully atone by "positive gerrymandering."

The Justice Department, headed by white Republicans in the Bush administration, had told North Carolina that the Voting Rights Act forbade state officials from continuing to draw district boundaries in ways that had ensured that no black North Carolinian had been elected to Congress since Reconstruction. Blacks had been voiceless and powerless, even though they made up one-fourth to one-third of North Carolina's population during most of this century.

Under Justice Department pressures, the North Carolina legislature used the 1990 census to redistrict in a way that created two majority-black districts, Nos. 1 and 12. In 1992, two black candidates, Eva Clayton and Mel Watt, were elected to Congress. The Republican Party and some white individuals went to court, claiming that the legislature's race-consciousness carving out District 12 violated the rights of white people under the Equal Protection Clause of the Constitution. That clause, ironically, was written to protect black people from the political racism that North Carolina had practiced for more than a century.

The Supreme Court had to decide whether, all of a sudden, every judge or legislator must become "color-blind," ruling out race-based remedies for previous gerrymandering and other electoral discriminations.

"This court never has held that race-conscious state decision-making is impermissible in all circumstances," wrote Justice O'Connor.

But then she leaped to the fact that District 12 was a 160-mile-long "bizarre" sliver that snaked from Durham, between Greensboro and Winston-Salem, on down to Charlotte. "It is unsettling," she concluded, "how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past. . . . Racial gerrymandering, even for remedial purposes, may Balkanize us into competing racial factions."

Justice O'Connor was joined by three white men, Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy, in casting doubt upon the North Carolina plan. They asked the federal district court to explore whether there was some "compelling" societal interest in approving this "racial gerrymandering."

Four white justices, Byron R. White, David H. Souter, Harry A. Blackmun and John Paul Stevens, dissented forcefully. Mr. Blackmun said Justice O'Connor and those who joined her had abandoned law that was long before "settled."

Mr. Stevens said that nothing in the Constitution requires a congressional district to be compact, or have all elements contiguous, or that it not have a "bizarre shape."

"The duty to govern impartially is abused when a group with power over the election process defines electoral boundaries solely to enhance its own political strength at the expense of any weaker group," wrote Justice Stevens. "That duty, however, is not violated when the majority acts to facilitate the election of a member of a group that lacks such power."

He noted that district boundaries have been drawn to give representation to "rural voters, union members, Hasidic Jews, Polish Americans or for Republicans." He said "it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the Equal Protection Clause."

So there they were. Eight white justices in seemingly irreconcilable conflict. So who broke the tie? The lone black member of the Supreme Court, Clarence Thomas, who joined the conservative wing in throwing up another legal roadblock to blacks and Hispanics who only last year got a chance to have their voices heard and votes cast in our ultimate law-making body, the U.S. Congress.

Carl T. Rowan is a syndicated columnist.

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