Justice Blackmun and racial justice.

• Author: Hair, Penda D.
• Position: US Supreme Court Justice Harry A. Blackmun

Justice Blackmun is so well known for his pioneering work in support of a woman's right to choose an abortion that his other monumental contributions to the law seem to get lost. The struggle for racial justice is one area where Justice Blackmun's decisions have made a crucial, lasting impact. Justice Blackmun has written more than thirty opinions addressing problems of racial discrimination under the Constitution and federal civil rights statutes. His work ranges from his profound, eloquent conclusion in Regents of the University of California v. Bakke that "[i]n order to get beyond racism, we must first take account of race,"(1) to his innovative use of statistics and probability theory to shed light on discriminatory motive, to his passionate dissents from decisions he viewed as turning back the clock on civil rights.

Justice Blackmun's jurisprudence in the area of racial justice reflects consistent qualities of mind and heart: genuine empathy with and understanding of the plight of the disadvantaged; a strong sense of history and its relevance to current issues of racial fairness; a pragmatic, fact-oriented approach to judging; and an eloquence of expression that places him among the greatest of the Supreme Court's many gifted communicators.

A comprehensive review of Justice Blackmun's opinions and votes on issues of racial justice is not possible in this short Tribute. In the discussion below, I explore four themes that run through Justice Blackmun's racial justice opinions. I then focus upon his contributions to two key debates in civil rights law: the legality of race-conscious remedies and the significance of statistical evidence for proving discriminatory motive. Justice Blackmun's opinions in these two areas capture his influence upon the Court's, and the country's, thinking on issues of racial justice.

1. Perspectives

   1. The Real World

      Justice Blackmun's focus on the "real world" of the human beings affected by Supreme Court decisions is well recognized.(2) One of the most famous expressions of this focus was Justice Blackmun's protest in Beal v. Doe against the Court's decision to uphold a State's denial of Medicaid funding for nontherapeutic abortions:(3)

      For the individual woman concerned, indigent and financially

      helpless ... the result is punitive and tragic. Implicit in the Court's

      holdings is the condescension that she may go elsewhere for her

      abortion. I find that disingenuous and alarming, almost reminiscent of:

      "Let them eat cake."

      ... There is another world "out there," the existence of which the

      Court, I suspect, either chooses to ignore or fears to recognize.(4)

      Justice Blackmun's approach to claims of discrimination reflects this "real world" focus. His portraits of the plight of individuals who suffer from poverty, racism, sexism, and oppression are vivid. For example, in Wards Cove Packing Co. v. Atonio,(5) where the Supreme Court shifted the burden of proof to make it more difficult for a plaintiff to sustain a claim of discrimination under Title VII of the Civil Rights Act of 1964,(6) Justice Blackmun wrote:

      The salmon industry as described by this record takes us back to a

      kind of overt and institutionalized discrimination we have not dealt

      with in years: a total residential and work environment organized on

      principles of racial stratification and segregation, which ... resembles

      a plantation economy. This industry long has been characterized by

      a taste for discrimination of the old-fashioned sort: a preference for

      hiring nonwhites to fill its lowest level positions, on the condition that

      they stay there.(7)

      Justice Blackmun's racial discrimination opinions also remind us that racial oppression of minorities, while less blatant than in the past, still thrives. In dissenting from the Court's invalidation of a Richmond minority business preference program, he referred to "those who have suffered the pains of economic discrimination in the construction trades for so long,"(8) and strongly criticized the Court's failure to recognize the existence of discrimination today: "[T]his Court, the supposed bastion of equality, strikes down Richmond's efforts as though discrimination had never existed or was not demonstrated in this particular litigation."(9) Similarly, in Rose v. Mitchell, a case alleging racial discrimination in the selection of a grand jury foreman, he pointed out: "[R]acial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious."(10)

      Justice Blackmun's role in calling attention to the continuing reality of racial discrimination and its victims is important for several reasons. First, it has helped to provide factual balance in the larger, public debate. The Reagan Administration, and to a great extent the Bush Administration as well, used the offices of President, Attorney General, and Assistant Attorney General for Civil Rights to foment hostility toward civil rights remedies,(11) particularly affirmative action. These Administrations sketched a picture of "discrimination" quite different from Justice Blackmun's: They cast the country's major civil rights problem as discrimination against white males and systematically sought to eradicate both affirmative action and school desegregation, arguing that these remedies are illegal under the Constitution and federal civil rights statutes.(12) At one point, the Reagan Administration sought to overturn more than fifty consent decrees with race- and gender-based affirmative action provisions that prior administrations had obtained.(13) In this atmosphere, Justice Blackmun's focus on the reality of ongoing "old-fashioned" discrimination has special significance.

      Second, viewing a particular situation through the eyes of the victim provides insight that a more theoretical approach to decisionmaking may overlook. One scholar argues that "those who have experienced discrimination speak with a special voice to which we should listen."(14) Justice Blackmun is a receptive, empathetic listener who, while not personally the victim of racial prejudice, has been able to understand enough about the experience to integrate victims' voices into his thinking.(15)

      Third, the extent to which the Court thinks racial discrimination against minorities continues to be widespread may affect its decisions on difficult questions of law, such as affirmative action and burdens of proof. Justice Blackmun's opinions capture the ongoing nature of discrimination for those on the Court who are unaware or may prefer to ignore it. In Wards Cove, Justice Blackmun faulted the majority for failing to grasp the scope of the problem of race discrimination: "One wonders whether the majority still believes that race discrimination - or, more accurately, race discrimination against nonwhites - is a problem in our society, or even remembers that it ever was."(16)

   2. The Meaning of History

      Although he was a math major in college, there can be no doubt that Justice Blackmun is an accomplished student of history. Justice Blackmun's decisions in the area of race discrimination recognize both the significance of the events of the past - particularly this country's long history of slavery, Jim Crow, and systematic oppression of African-Americans and other minorities - and the impact of those events on the present.(17) For Justice Blackmun, as for one of his predecessors, Oliver Wendell Holmes,(18) "a page of history is worth a volume of logic."(19)

      For example, in his dissent in City of Richmond v. J.A. Croson Co., Justice Blackmun emphasized that "[h]istory is irrefutable."(20) In arguing that Richmond had the power to enact a modest, race-conscious contracting program, he found the history of that particular city to be of great significance: "I never thought I would live to see the day when the city of Richmond, Virginia, the cradle of the Old Confederacy, sought on its own, within a narrow confine, to lessen the stark impact of persistent discrimination."(21)

      For Justice Blackmun, the City of Richmond's place in the Confederacy is far from trivia. Justice Blackmun is a true Civil War buff, known to have toured Civil War battlefields with his law clerks. He deeply admires President Lincoln. And prominently displayed on a wall in his chambers is a bill of sale for the purchase of a twelve-year-old slave. For Justice Blackmun, the Civil War is very real; his perspective influences his construction of the Civil War Amendments to the Constitution.

      Justice Blackmun is especially attuned to the history and original purpose of the Fourteenth Amendment. In Rose v. Mitchell, he explained:

      Discrimination on account of race was the primary evil at which the

      Amendments adopted after the War Between the States . . . were

      aimed. The Equal Protection Clause was central to the Fourteenth

      Amendment's prohibition of discriminatory action by the State: it

      banned most types of purposeful discrimination by the State on the

      basis of race in an attempt to lift the burdens placed on Negroes by

      our society.(22)

      Relying on this understanding of the Fourteenth Amendment's history, Justice Blackmun concluded that racial discrimination in the selection of a grand jury foreman is not harmless error, but so "strikes at the fundamental values of our judicial system and our society as a whole" that it can be asserted as a ground to overturn a criminal conviction.(23)

   3. Fact-Oriented Pragmatism

      Justice Blackmun's pragmatic approach to, issues of racial justice(24) is illustrated in his concurring opinion in United Steelworkers of America v. Weber.(25) The Weber case is one of a series of cases in the 1970's and 1980's in which white male workers sought to prohibit the use of gender- and race-based hiring and promotion goals by arguing that only actual victims of past, illegal discrimination could receive...