"The Supreme Court Term In Review, Part III: Anti-Discrimination"
(The following is the third in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)
Several landmark civil rights laws, including ban on age discrimination, the ban on covert employment discrimination, and two essential provisions of the Voting Rights Act were cut back this Supreme Court Term, some of them drastically. Worse, several of these decisions suggest that the Court’s most conservative members are eager to rip out the backbone of American anti-discrimination law.
- Thumbing Their Noses At Precedent
As the Wonk Room previously reported, the Court in Gross v. FBL Financial Services dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment. Moreover, as Justice Stevens explained in his dissent, Justice Thomas’ 5-4 decision in Gross showed “utter disregard for . . . precedent and Congress’ intent,” because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result.
For his part, Thomas didn’t even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.
- Standing At The Brink
In slight contrast to Gross, the Court also rolled several other landmark civil rights provisions, but it handed down significantly narrower opinions than the Court’s most conservative members would have liked.
The Voting Rights Act’s ban on “vote dilution” prevents states from drawing voting districts that divide minority population centers into multiple districts in order to prevent racial minorities from electing the candidate of their choice. Bartlett v. Strickland, however, drastically cuts back on this ban by holding that it only applies when a minority population center is sufficiently large that a compact voting district could be drawn in which minorities make up a majority of the voters. Where the minority population falls under this threshold, the ban now does not exist.
Similarly, Section 5 of the VRA requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice. Under the Court’s decision in NAMUDNO v. Holder, however, it is now much easier for districts to “bail out” of Section 5’s requirements if they can show that they have not recently engaged in race discrimination.
Federal law prohibits both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. In Ricci v. DeStefano, however, the Court made the novel claim that the ban on hidden race discrimination may itself be a form of discrimination because it requires employers to think in terms of race. However one feels about the admittedly sympathetic case of Frank Ricci, the conservative justices went much further than they needed to in order to decide in his favor. Apparently, even acknowledging the simple existence of race offends the Court’s conservatives.
Each of these three decisions cut back on progressive legislation, some of them drastically, but Bartlett rejected Justices Thomas’ urging to simply eliminate vote dilution claims altogether, and NAMUDNO and Ricci both expressly declined to consider conservative claims that Section Five and the ban on disparate impact discrimination are unconstitutional—despite pointed questions during the NAMUDNO arguments suggesting that a majority of the Court is prepared to invalidate Section Five.
Because NAMUDNO and Ricci avoided these constitutional questions, they remain unresolved. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint—and far more likely that conservatives are still unable to find the fifth vote to strike down Section Five and the ban on disparate impact.