The Supreme Court this month is hearing two potentially landmark cases on race. The first challenges Congress's extension of the Voting Rights Act; the second, a controversial affirmative action program in New Haven. In both cases, the Court may force Barack Obama to do what he has the unique skills but not the political incentive to do at the moment: carve out a third way in the race debate, one that rejects the extremes of conservative color-blindness and liberal racialism.
Ever since the civil rights era, anti-discrimination law has been frozen in time. As the United States struggled to overcome the legacy of segregation in the 1960s, Congress decided that only the heavy-handed threat of lawsuits could prevent policies that might have an adverse impact on African Americans from being implemented in the first place. Today, however, the old legal theories about the need to deter the intractable and largely unchanging racism of American society are being challenged by new empirical realities. Racism still exists, but it co-exists with other, more hopeful evidence—such as the willingness of white voters in six out of the nine Southern states partially or fully covered by the Voting Rights Act to vote for Barack Obama by equal or even larger margins than they voted for John Kerry. Obama's election doesn't suggest the end of racism, but it does suggest progress in some areas of the country, combined with signs of intractability and retrenchment in others.
Moreover, there are obvious costs to the current legal regime, with its obsessive focus on discriminatory effects rather than direct evidence of racist intent. By forcing Southern states to pre-clear all changes in voting policy with the federal government, Congress makes it harder for them to adopt alternative voting systems, such as cumulative voting, that might actually help minorities. Current law also encourages the creation of majority-black and majority-white districts that tend to elect more polarized candidates, hastening the demise of the Democratic Party in the South. And, in the workplace, the current regime puts pressure on employers to abandon the neutral tests for promotion that are the main opportunity for advancement available to many working-class employees.
The Supreme Court may decide that, in light of new empirical evidence suggesting some racial progress, the inflexible vision of racial equality that Congress embraced in the '60s is outdated. If so, the decisions could represent an opportunity for Obama to offer a more convincing alternative. Accepting the Court's invitation to focus on current rather than historical patterns of racism, Obama could insist that the law can respond legitimately to voting and employment policies that have discriminatory effects, but only to those where there is clear and contemporary evidence of actual racist behavior. In the process, Obama could advance the debate about race and law beyond the rut in which it has been stuck for the past generation, crafting a moderate approach that is ultimately better for the country.
Both cases before the Court raise the question of whether the threat of federal lawsuits is still necessary to deter states from adopting policies that have discriminatory effects on African Americans. The first case, Northwest Austin Utility District v. Holder, challenges Congress's reauthorization of the Voting Rights Act in 2006. At that time, Congress ruled that the nine states that were found to have engaged in voting rights discrimination in the 1960s and '70s must continue, for the next 25 years, to "pre-clear" with the Justice Department any change in voting arrangements that might discriminate against minorities. The extension of the act, which passed with large bipartisan majorities, was premised on the idea that patterns of voting discrimination have changed very little since the '60s. The core fear, then, was that the "covered jurisdictions" might move the location of polling places in ways that would make it harder for minorities to cast a vote.
But the truth is that, in 2006, Congress didn't engage in a serious empirical comparison of voting patterns in the areas of the country that are and aren't covered by the Voting Rights Act. The civil rights establishment was intent on preserving the status quo, which has led to the election of some African Americans in the South at the expense of the Democratic party as a whole; and white Democrats and Republicans in the South concluded it would be political suicide to question the need for sweeping federal oversight, which might make them appear hostile to minorities. More broadly, Northern and Midwestern politicians had no incentive to invite federal oversight of their own districts, some of which are just as polarized as the South. (Chicago and Boston, for example, may have more polarized voting patterns than parts of Alabama.) All in all, neither Republicans nor Democrats were willing to acknowledge the evidence suggesting that discriminatory barriers to ballot access today, unlike the '60s, seem to be very rare.
As Richard Pildes of the New York University School of Law notes, it's extraordinarily unusual these days for the Justice Department to refuse to pre-clear any proposed change in voting arrangements submitted by one of the nine covered jurisdictions. The Department objected in only 0.6 percent of the submissions between 1982 and 2005, and only 0.05 percent of the submissions between 1996 and 2002. Even in this tiny universe of cases, moreover, the vast majority of the Justice Department's objections don't involve obstacles that prevent minorities from casting votes. Instead, according to Pildes, most of them involve redistricting or annexation—that is, changes in the drawing of district lines that influence which candidates win. In those cases, the objection is to patterns of racially polarized block voting, which occur when black voters overwhelmingly favor black candidates and, in the same race, white voters overwhelmingly favor white candidates.
In the 1980s, the Supreme Court announced that racially polarized block voting can itself be considered an example of illegal discrimination under the Voting Rights Act. (The idea was that racial polarization suggested that whites were too racist to vote for black candidates.) The proper remedy, the Court held, was to require the creation of majority-black districts that would allow minorities to elect representatives of their choice. This may have made some sense 20 years ago: The South at that time was mostly Democratic, and racially polarized voting was viewed as a decent proxy for areas where African Americans had no realistic chance of being elected and where discriminatory voting structures endured. Today, however, polarized voting is a far less reliable measure of racism. In an age where race is strongly correlated with politicalparty preferences—most Southern whites are Republican, and most Southern blacks are Democratic—racially polarized voting may simply mean that black and white voters are voting their party's ticket.
Liberals, always looking for evidence of unconscious racism, insist this isn't the case. But they fail to engage fully with the best evidence of racist voting patterns—the "fall-off rate," which measures whether a black Democratic candidate, such as Obama, does worse among white voters than a white Democratic candidate, such as John Kerry. It's true, as liberals emphasize, that in three of the nine Southern states fully or partially covered by the Voting Rights Act (Alabama, Mississippi, and Louisiana), Obama did worse among whites than Kerry. But it's also true, as liberals don't emphasize, that in six other covered states (Georgia, South Carolina, North Carolina, Texas, Florida, and Virginia), Obama did the same as Kerry or better. This means that the blanket assumptions on which the Voting Rights Act rests may be simplistic and out of date.
Voting rights cases aren't the only area where the old legal paradigms about race and law are being challenged by new empirical realities. This month, the Supreme Court will also hear Ricci v. DeStefano, the most controversial affirmative action case of the term, involving the promotion of firefighters in New Haven. In 2003, the city administered a promotion test. The test was validated by independent experts, as federal law requires, to ensure that it focused on job-related skills rather than purely cognitive ones. But, after the test was administered, none of the top-scoring candidates for 15 positions turned out to be African American. (Fourteen were white, and one was Hispanic.) A local preacher contacted the mayor and said he didn't want the test certified because of its racial disparities; the local civil-service board then deadlocked about whether or not the certification of the exam results could lead the city to be sued under Title VII of the Civil Rights Act, which prohibits employment practices that have a discriminatory impact on minorities unless they're required by "business necessity."
As a result of the deadlock, the city refused to certify the exam and promoted no one. The city was then sued by 19 white firefighters (and one Hispanic) led by Frank Ricci, a sympathetic 34-year-old white man. Ricci, who is dyslexic, spent more than $1,000 buying the study guides recommended by the city and paying an acquaintance to record them as audiotapes, which he listened to as he drove to and from work.
The Ricci case is a nightmare for moderate liberal supporters of affirmative action, because it presents the least sympathetic facts imaginable. The Supreme Court has said repeatedly that affirmative action is most troubling when its burdens are concentrated on a few innocent white people rather than being widely dispersed among a large group of white and black applicants. So, for example, the Court in 1985 struck down a teachers' union agreement that white teachers would be fired and black teachers with less seniority would be retained in order to preserve racial balance. We haven't seen such unsympathetic facts in an affirmative action case since the school board of Piscataway, New Jersey, decided in 1989 to fire a white teacher rather than a black teacher who had been hired on the same day. Afraid of a big defeat before the Supreme Court, civil rights groups raised money for that case to be settled out of court. This time, they may not be so lucky.
The latest empirical research on racist decision-making undermines the position of the civil rights groups. Economists have concluded that unconscious racism is most likely to infect hiring decisions involving split-second, discretionary judgments, such as screening a thick pile of resumes into "yes" and "no" piles. A 2005 study published by the American Economic Association found that participants in a resume study who reported feeling rushed were substantially less likely to pick resumes with African American last names. But this kind of unconscious racism is far less likely to materialize in employment decisions that involve careful deliberation over time—such as the design of the promotion tests in New Haven, which were reviewed and validated by independent experts.
On the Supreme Court, the decisive vote in the affirmative action and voting-rights cases may be cast by Justice Anthony Kennedy, who has rarely met an affirmative action program he will unequivocally endorse. If the Supreme Court strikes down part of the Voting Rights Act and the New Haven affirmative action program, the decisions might be questionable as constitutional matters, since the framers of the Civil War amendments to the Constitution intended to give Congress broad latitude to define discrimination as it thinks best. But Supreme Court defeats would hardly be the worst thing for liberals as policy matters. They would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology.
This is a position that Obama has been moving toward ever since he taught voting-rights and race law at the University of Chicago in the late '90s. As a law professor, Obama impressed his students with his non-ideological approach to questions involving voting rights and affirmative action. "He was very even-handed and kept his cards close to his chest," recalls David Franklin, now a law professor at DePaul who studied voting rights with Obama in 1997. "He was probably more intellectually engaged by election-law issues than by race and racial issues as such." Franklin says that Obama seemed more interested in empirical evidence about actual voting patterns than in liberal shibboleths about the need for majority-black voting districts or conservative shibboleths about the need for color blindness.
If the Supreme Court rules that Congress needs actual evidence of racially polarized voting before supervising state elections, Obama would have the stature to insist that federal oversight is no longer necessary in some parts of the South but might be necessary elsewhere. Democrats might benefit if the Supreme Court reduced the pressure on Southern states to create majority-minority districts. (Some scholars estimate that the Democrats lost the House in 1994 because of racial redistricting.) At one time, it was believed that blacks would never get elected without safe districts; now the concern runs in the other direction—namely, that drawing safe minority districts that aren't compelled by geography may make it harder for politically moderate black candidates to run and win. A Supreme Court defeat could force Obama to challenge the civil rights establishment by making publicly a case that white Democrats increasingly embrace privately: Now that black officials are winning elections at every level, the design of electoral districts should be left to political horse-trading and negotiation, rather than being micromanaged by Washington.
A defeat in the affirmative action case could also give Obama a chance to move further toward the center. In its Supreme Court brief in the New Haven case, the Obama administration tried to split the difference between the firefighters and civil rights groups, a straddle that represented a victory of sorts for administration moderates who wanted to avoid wholeheartedly endorsing New Haven's quota-driven decision. But the Obama brief fails to answer clearly the core question raised by Judge Jose Cabranes on the lower court: "May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
If the Supreme Court says no, Obama might have to acknowledge openly that skepticism about employment tests that have a "disparate impact" on minorities makes less sense today than it did in the 1970s and '80s, when the country was still dealing with the legacy in the workplace of legalized segregation. Obama could wean liberals of the resort to the threat of lawsuits to avoid discrimination in the workplace at all levels. Instead, he might convince Congress that judicial oversight of employment decisions makes more sense when it comes to entry-level hiring decisions, which are more likely to be affected by stereotypical judgments than cases of promotion and firing. At the moment, the vast majority of "disparate impact" cases involve challenges to promotion, demotion, or firing, rather than hiring—but these are precisely the kinds of cases in which impulsive, unconscious racism is least likely to materialize.
Without pressure from the Supreme Court, Obama may never carve out the third way on race that he is uniquely positioned to define. With all the other problems facing the country—from the economy to the war on terrorism—Obama has no incentive to take on liberal racialists who believe we've made little progress on race since the 1960s or conservative color-blind partisans who insist that anti-discrimination laws are no longer necessary. But everything in Obama's background suggests that he has the inclination and ability to help the country transcend the extremes that have defined our racial politics for too long. Racial outcomes in voting and employment are sometimes, but not always, a proxy for racial discrimination, Obama could insist, but only in places where there is actual empirical evidence of discrimination itself. That would provoke a debate rooted in facts rather than stereotypes—one that liberal and conservative ideologues may fear, but that the country as a whole would welcome with gratitude and relief.
Jeffrey Rosen is the editor of legal affairs at The New Republic.