The justices of the Supreme Court, one presumes, are learned in the law. But the five members who last week restrained the Justice Department and the states from pushing hard to create congressional districts likely to elect African-American representatives would not get high marks in political science or history.
Thirty years ago, when the Voting Rights Act was passed, folks on Capitol Hill seemed to understand there was a reason why there were only six blacks in the House _ none of them from the South, the traditional home of most African-Americans. They knew that from Reconstruction down to their time, Southern blacks had been shut out of the voting booth by restrictive registration laws and threats of retaliation.
They also knew that even where blacks were voting in significant numbers, schemes of representation had been rigged to keep them out of public office. Jurisdictional boundaries would be altered or at-large elections ordered _ whatever it took to dilute the black vote and cement the old guard in place.
So Congress went beyond clearing the roadblocks to the polling place. It banned all the rigged districting plans that effectively kept blacks from winning elections. It told the affected states they would have to "pre-clear" their districting decisions with the Justice Department and told Justice to do everything possible to assure that black representation becomes more than a theoretical right.
The last time the act was renewed, that command was strengthened, and the districting decisions made after the 1990 Census showed its effectiveness. The size of the Congressional Black Caucus increased from 24 in 1990 to 39 today, mainly because of newly drawn majority-minority districts in the South.
Two years ago, the Supreme Court threw down a warning that when the districts looked "bizarre," as some did, they would face "strict scrutiny." Last week, going much further, the court's 5-4 majority said that when race is the "predominant" factor in a districting plan, aggrieved white voters could file suit and _ in the Georgia case at hand _ force the lines to be redrawn.
The decision left a lot of questions unanswered, and some of the scholars and activists I interviewed think the cries of doom from Black Caucus members may be premature. But the effort, by fiat, to proscribe race from its central role in Southern politics _ and much beyond the South _ defies history and turns logic on its head.
Justice Anthony M. Kennedy, writing for the majority, said, "Just as the state may not, absent extraordinary justification, segregate citizens on the basis of race in its public parks, buses, golf courses, beaches and schools, so . . . it may not separate its citizens into different voting districts on the basis of race."
Justice John Paul Stevens, in his dissent, pointed out that Kennedy's equation does not work. "Our desegregation cases redressed the exclusion of black citizens from public facilities reserved for whites," he wrote. "In this case, in contrast, any voter, black or white, may live in the 11th District (of Georgia). What respondents contest is the inclusion of too many black voters in the district as drawn."
Stevens also pointed out that the protesting white voters can show injury only if white interests are different from those of blacks and "if the successful candidate ignores the interests of her white constituents." Do the members from these new districts care only about blacks? The best answer, David Bositis of the Joint Center for Political and Economic Studies, a black think tank, pointed out to me, came just three weeks ago in a House roll call on capping the B-2 bomber program.
Budget Committee Chairman John Kasich, R-Ohio, and Rep. Ron Dellums, D-Calif., a senior member of the Black Caucus, came within a few votes of stopping the multibillion-dollar program. They lost in large part because 17 Black Caucus members voted to keep buying the planes.
The split among black members was revealing. Those elected before 1992, when the new wave of majority-minority districts came in, voted 14-4 to cut off the B-2, which has no big cheering section among black voters. Those elected since 1992, mainly from the new districts, voted 13-7 for the big defense program.
Why? Because those new districts are, on average, only 54 percent black _ "the most integrated districts in the country," as Bositis said _ and their representatives are responsive to white business interests.
On other questions, they obviously give priority to the needs of their black constituents _ balancing the equation just as all politicians do.
So what is the Supreme Court so worried about?
Washington Post Writers Group