William M. Carter, Jr., the Paradox of Political Power: Post-racialism, Equal Protection, and Democracy

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 61 No. 5

THE PARADOX OF POLITICAL POWER: POST-RACIALISM, EQUAL PROTECTION, AND DEMOCRACY

William M. Carter, Jr.*

[A] reasonable jury could easily find that the City’s real reason . . . was . . . a simple desire to please a politically important racial constituency.

—Ricci v. DeStefano1

Democracy is premised on responsiveness.

—Citizens United v. FEC2

INTRODUCTION

Racial minorities have enjoyed increasing electoral success in recent years, while continuing to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.3 Some observers, including some members of the Supreme Court, have pointed to

evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of substantial continued disparities for the vast majority of people of color.

This Essay will examine the tension between repeated calls for racial minorities to achieve their goals through the political process and the Supreme Court’s increasingly restrictive “colorblind,” or “post-racial,” jurisprudence,

* Dean and Professor of Law, University of Pittsburgh School of Law. This Essay benefited greatly from the comments and critiques I received at the Law and Society Association’s 2011 Annual Meeting and at the Constitutional Law Colloquium organized by Mark Tushnet of Harvard Law School during the American Constitution Society’s 2011 National Convention. I would also like to thank Mike Lizerbram for his research assistance. This Essay is dedicated to my nieces and nephew, Alissa, Brianna, and William (“Tre”) Snoddy. Know that your dreams are always within reach and that you can change the world. Do not let it change you.

1 129 S. Ct. 2658, 2688 (2009) (Alito, J., concurring).

2 130 S. Ct. 876, 910 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J.,

concurring in the judgment in part and dissenting in part), overruled by Citizens United, 130 S. Ct. 876) (internal quotation mark omitted).

3 See, e.g., Mario L. Barnes et al., A Post-Race Equal Protection?, 98 GEO. L.J. 967, 982–92 (2010)

(surveying statistical data indicating continued racial disparities along many measures of economic and social success); R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803, 806–07 (2004) (same). This is not to suggest that racial minorities have not achieved substantial gains relative to earlier times. See, e.g., James Forman, Jr., The Black Poor, Black Elites, and America’s Prisons, 32 CARDOZO L. REV. 791, 793 n.15 (2011) (citing statistics showing improvements in a variety of material conditions for African-Americans since the Civil Rights Era).

which severely limits the circumstances in which racial minorities can effectively exercise their political power once it has been attained. Examples include City of Richmond v. J.A. Croson Co., where the Court struck down an affirmative action program adopted by a majority-black city council;4 Ricci v.

DeStefano, where black and Latino residents of New Haven successfully lobbied the City of New Haven to discard a test for promotions in the fire department because the test resulted in substantial exclusion of racial minorities, only to have the City’s action struck down by the Court;5 and Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), where the renewal of section 5 of the Voting Rights Act passed

the House and Senate by overwhelming margins, only to have its constitutionality strongly questioned by the Supreme Court.6

This Essay argues that the Court’s suspicion of the exercise of minority political power will only increase as its post-racial jurisprudence accelerates. For racial minorities, the countermajoritarian difficulty is likely to become much more difficult.

1. THE COUNTERMAJORITARIAN DIFFICULTY AND POST-RACIALISM

   
   

   For decades, scholars have attempted to resolve the “countermajoritarian difficulty”: the proper role of an unelected federal judiciary in mediating conflicts between majority rule and minority rights.7 The primary justification for heightened judicial scrutiny of government action disadvantaging certain minority groups has been the “process-defect” rationale.8 Declaring elected officials’ actions unconstitutional is, of course, always antidemocratic in a “thin” sense.9 Doing so is nonetheless considered justified with regard to laws

   
   

   4 488 U.S. 469 (1989).

   5 129 S. Ct. 2658 (2009).

   6 129 S. Ct. 2504 (2009).

   1. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF

      POLITICS 16 (Yale Univ. Press, 2d ed. 1986) (1962) (“The root difficulty is that judicial review is a counter- majoritarian force in our system.”).

   2. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) (noting that “prejudice against

      discrete and insular minorities may . . . tend[] seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities,” thereby requiring “a correspondingly more searching judicial inquiry” in such cases); see also JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135–79 (1980) (discussing process-defect theory as a reason for judicial intervention on behalf of minorities).

   3. See, e.g., Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional

      Scholarship, 95 NW. U. L. REV. 933, 936 (2001) (questioning the premise of the countermajoritarian difficulty

      burdening certain minority groups because they are presumed to be unable to fully protect their interests through the political process, due to their numerical disadvantages, the majority’s aversion to them or their interests, and histories of prejudice and subordination.10 In other words, the judiciary helps those who

      cannot help themselves.

      
      

      Critics have long suggested, however, that the Supreme Court has too often engaged in judicial activism, i.e., that it has too often acted in countermajoritarian ways. Many disputes, it is argued, would be better resolved through the political process than in the courts.11 Even with regard to

      racial discrimination, conservatives in particular have argued that advocates of racial equality too often rely upon judicial, rather than political, remedies.12

      
      

      Simultaneously, post-racialism has become the dominant cultural narrative regarding racial inequality.13 Post-racialism posits that racial minorities’ societal gains combined with the presumed absence of contemporary discrimination against them render measures explicitly aimed at redressing racial inequality both unnecessary and counterproductive. It is argued that such measures cause, rather than cure, racial divisiveness and resentment.14 The

      
      

      and arguing that judicial review “yields remarkably majoritarian results[] and is a process that is different from majoritarian politics but nonetheless responsive to it”).

   4. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985) (stating that laws

      classifying on the basis of race, alienage, and national origin are subject to strict scrutiny because “[t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy” and “because such discrimination is unlikely to be soon rectified by legislative means”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (stating that strict scrutiny should only apply when the class at issue is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”).

   5. See, e.g., Lawrence v. Texas, 539 U.S. 558, 603 (2003) (Scalia, J., dissenting) (criticizing the majority

      for striking down a Texas law criminalizing homosexual conduct but stating that he “ha[s] nothing against homosexuals, or any other group, promoting their agenda through normal democratic means”).

   6. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (“[The petitioner’s] arguments are best

      presented to the legislative bodies. It is not the responsibility—or indeed even the right—of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are ‘constituted to respond to the will and consequently the moral values of the people.’” (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C.J., dissenting) (per curiam))).

   7. See Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1594 (2009) (describing post-racialism as

      reflecting the “belief that due to the significant racial progress that has been made, the state need not engage in race-based decision-making or adopt race-based remedies, and that civil society should eschew race as a central organizing principle of social action”).

   8. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring in part

      and concurring in the judgment) (arguing that affirmative action programs “engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race”).

      post-racialist worldview holds that very little discrimination against minorities occurs today, that any discrimination that does occur is aberrational, and that adopting remedial measures to combat the actions of a few bigots is a cure worse than the disease.15

      
      

      This Essay, while addressing both post-racialism and countermajoritarian criticisms of judicial action protecting racial minorities, does not attempt to resolve those debates. Rather, my primary goal is to illuminate the dangers of what I believe to be a coming convergence between those two ideas in constitutional doctrine and discourse. If post-racialism is assumed to be descriptively accurate, then racial minorities should be able to achieve their goals through the political process, rather than through the courts. And if the...