The Roberts Court at 10

Turning Back the Clock on Protections for Racial Equality | Chapter 5


Chief Justices typically have a signature issue that dominates their tenure on the Supreme Court. Chief Justice Earl Warren’s was ending Jim Crow, Warren Burger’s was scaling back the protections of criminal procedure rulings such as Miranda v. Arizona and Mapp v. Ohio, and William Rehnquist’s was reinvigorating federalism and establishing new limits on the power of Congress. John Roberts’s signature issue – at least so far – is striking down or limiting policies and legal protections designed to foster equality and redress our nation’s history of racial discrimination. This snapshot—the latest in our yearlong examination of Roberts’s first decade as Chief Justice—examines Chief Justice Roberts’s jurisprudence on race.

For the last two decades, conservatives on the Supreme Court have been waging a war on affirmative action and other race-conscious remedies. In their view, the Equal Protection Clause of the Fourteenth Amendment requires the government to be colorblind, forbidding not only Jim Crow segregation, but also affirmative action programs that seek to overcome the legacy of that segregation. Since joining the Supreme Court in 2005, Chief Justice Roberts has become the leading voice for these views, famously stating that the Fourteenth Amendment requires colorblindness by the government and that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts has proclaimed that any racial discrimination is too much, but as Chief Justice, he has repeatedly voted to strike down or limit basic federal civil rights protections designed to enforce the Constitution’s promise of equality for all persons regardless of race. Roberts wrote the opinion in Shelby County v. Holder, a 5-4 ruling that held unconstitutional one of the most important and successful provisions of the Voting Rights Act, ignoring the fact that the Constitution gives Congress the power to enact measures to protect the right to vote free from racial discrimination. In other 5-4 cases, Roberts has joined majority opinions that limited the scope of protections against racial discrimination. And in notable 5-4 cases that expanded civil rights protections, Roberts has dissented. This is not to say that the Chief Justice has never voted to uphold claims of racial discrimination by minority plaintiffs. But the thrust of his jurisprudence is clear: Roberts has consistently voted to strike down laws that use race to help foster equality, while giving a narrow reading to Congress’s power to enforce the Reconstruction Amendments and to foundational civil rights statutes enacted pursuant to those Amendments.

Roberts’s efforts to turn back the clock on protections for racial equality is apparent not only from the substance of his opinions, but also in the Court’s case selection process. In most areas of the law, the Justices get involved only when there is conflict among lower courts, or when a federal statute has been declared unconstitutional. But that has not been the pattern in the Roberts’s Court’s race cases. In almost all of the biggest decisions of the Roberts Court in this area, the Justices have granted review when the lower courts, following settled Supreme Court precedent, were in complete agreement. In short, this is an area in which, year after year, the Roberts Court has repeatedly taken cases in order to make new law.

This Term is no exception. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Justices have agreed to decide whether the Fair Housing Act, like other federal civil rights laws, allows civil rights plaintiffs to challenge government action that is fair in form, but discriminatory in operation. All eleven Circuit Courts of Appeals that have considered the question have held that it does, but, despite this unanimity, the Supreme Court has granted review. Indeed, the Inclusive Communities case is the third case in three years in which the Court has granted review to resolve the question. Clearly, this is a question the Justices – or at least four of them – very badly want to decide.

To anyone who has followed the career of John Roberts, his effort as Chief Justice to rewrite legal protections and civil rights laws designed to redress our nation’s long history of racial discrimination should come as no surprise. As an attorney in the Reagan Administration, Roberts was a fierce foe of affirmative action as well as of efforts to strengthen the Voting Rights Act and other civil rights statutes. In the early 1980s, Roberts wrote that the “effect of race-conscious remedies” was “reverse discrimination.” Roberts opposed the use of a results test in the Voting Rights Act, arguing that a focus on discriminatory impact would result in a “drastic alteration of local government affairs,” and characterized the Fair Housing Act as a form of “[g]overnment intrusion” that “quite literally hits much closer to home in this area than in any other civil rights area.”

Now as Chief Justice, Roberts has consistently worked to move the law to the right, aiming to get the government out of the business of redressing our nation’s long history of racial discrimination. Chief Justice Roberts authored the 5-4 opinion in Shelby County striking down a core provision of the Voting Rights Act, but in other areas, the Chief Justice hasn’t always been able to bring his conservative colleagues together to rollback protections for equality. Most notably, in Fisher v. University of Texas,  which was billed as a major test of affirmative action in university admissions, the Justices issued a narrow 7-1 ruling and, most important, did not disturb the principle that universities may use race as one factor among many in choosing a diverse student body. This Term, as the Justices consider whether to discard disparate impact liability in the Inclusive Communities case, the big question is whether the Fair Housing Act will be the next casualty of Chief Justice Roberts’s effort to gut key civil rights protections that have ensured equal opportunities for millions of Americans.

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