White America seems bent on turning a blind eye to the many problems that nearly four centuries of racial injustice have created. Among those leading the way is Supreme Court Justice Sandra Day O'Connor.
To many academics and journalists, O'Connor is a moderate conservative, a "centrist." The Economist has described her as "having staked out the center on many of the great questions before the court." The Los Angeles Times has referred to her "distinct and carefully nuanced middle-ground positions" on various issues.
That may be true on some issues, but not when the civil rights of racial minorities are at issue. In decisions significantly affecting the efforts to fight racial discrimination and its effects, she has almost always voted against the racial minority in favor of the white majority, except where the Supreme Court is unanimous or near-unanimous.
For example, despite her rhetoric about sometimes allowing "race-based action [if] necessary to further a compelling interest" (which led one commentator to refer to her as "groping for an intermediate, subtle fine-grained position [on] the affirmative-action problem"), she never has voted to allow a specific affirmative-action plan for blacks or other minority groups.
She has, in fact, been the court's leader in its assault on racially oriented affirmative action. Her underlying premise in these cases seems to be that a temporary preference designed to help a relative handful of racial minorities overcome the damage inflicted by centuries of brutal subjugation and discrimination is to be treated as if it were just as immoral as the laws that perpetrated that brutalization, a position openly espoused by Justice Clarence Thomas. The irony, of course, is that she and Thomas are the outstanding examples of affirmative action in recent history.
To analyze her record, a computer search of her votes on cases involving racial minorities since 1981-1982, her first term, was made, supplemented by a search through the annual Supreme Court surveys by United States Law Week. This analysis discloses that in the 16 full years that O'Connor has been on the court, it has decided 67 cases dealing directly and specifically with the rights of racial minorities (treating multiple cases with the same issue as one). Of these, 13 cases were decided unanimously, five by 8-1 and eight by 7-2, with 41 sharply split racial decisions.
Putting aside for the moment the 26 decisions decided by unanimous, 8-1 or 7-2 votes, where she voted for racial minorities 16 times (11 in the 13 unanimous cases, of which seven were in her first five years), O'Connor has voted against the minority litigant in all but two of the 41 close cases involving race.
These cases have dealt with almost every legal issue related to racial justice, including voting rights, employment, school desegregation, affirmative action, the scope of enforcement for federal civil rights statutes, jury selection and capital punishment. In these cases, she often has ignored or repudiated her own prior rulings against civil rights claimants, racial and otherwise, on access to the courts and on federal power.
* In 1996, she joined an opinion by Chief Justice William H. Rehnquist, after an earlier path-breaking decision she wrote in 1993, in which the court struck down an electoral districting plan designed to facilitate the election of two black representatives out of 12 from North Carolina, a state that had not had any black representatives since Reconstruction and that was about 20 percent black.
* In 1989, she joined a series of employment-discrimination decisions that, among other things, read a civil rights statute as not including racial discrimination in promotions, and made it more difficult to prove racial discrimination in employment; cases subsequently overturned by Congress.
* In three cases in 1990, 1991 and 1995, she voted to relieve school districts of the obligation to desegregate - although the fact and effects of segregation were still present.
* In 1987, she joined a 5-4 majority that voted to ignore strong statistical evidence of racial discrimination in capital punishment cases, including evidence that black defendants were more likely to receive the death penalty than others.
The sole exceptions to this pattern were when she was part of a 6-3 majority ruling, in 1982, that the at-large election system for a Georgia county board violated equal protection, and in 1991, that state judges are covered by the ban on vote dilution in the Voting Rights Act.
The overall picture is clear: Except where the matter is so much in favor of the racial minority that the vote is unanimous or close to it, O'Connor can be counted on to vote against the racial minority almost every time.
Herman Schwartz is a professor of constitutional law at American University. This article first appeared in the Los Angeles Times.
Pub Date: 6/07/98