Friday, August 26, 2011
The paradox is one that has almost become taken for granted. As ConLawProf William Carter (pictured below) phrases it in his new essay, The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy, available on ssrn:
Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.
Carter argues that the Supreme Court has contributed to this paradox. Importantly, Carter contends that electoral success has been "isolated," despite the election of President Obama, and that the Court has not uniformly supported legislative acts to increase electoral representation. Additionally, Carter notes the "tension" between the "Court's conservatives' repeated calls for minorities to achieve their goals through the political process" and the ways in which the Court "severely constrains the circumstances" in which the political power of racial minorities can effectively be exercised.
In discussing Ricci v. DeStefano (2009), Carter concludes that the Court's majority opinion "showed deep suspicion of black political power." Carter contends that the Court found that
successful black political advocacy that temporarily prevented the perpetuation of racial exclusion amounted to reverse discrimination against whites. It reached this conclusion despite the fact that no promotions were made at all and the fact that making the racially discriminatory promotions likely would have violated then-existing law. In essence, Ricci makes a racial minority group’s success in using ordinary politics to prevent its continued subordination and exclusion presumptively illegal.
Carter also analyzes Northwest Austin v. Holder, decided the same year as Ricci, involving §5 of the federal Voting Rights Act. He provides a different window on the opinion than the ones (such as our discussion) construing it as a narrow opinion that avoided declaring §5 unconstitutional. For Carter, Justice Roberts "lengthy dicta" was a signal to Congress that several members of the Court believed §5 raised serious constitutional questions. The opinion, Carter says, was "suffised with post-racialist assumptions about minority political power." Carter sums up the paradox of voting rights legislation in a neat question: "If racial minorities are powerful enough to have such legislation enacted, then why do they need it?"
The major contribution of Carter's essay, however, is his suggestion for addressing these paradoxes. In addition to theorizing our understandings of our Constitutional and Equal protection Clause narratives, Carter suggests
the addition of a preliminary step to the equal protection analysis. Prior to the application of
strict scrutiny in cases where racial minorities have used the political process to enact legislation directed toward remedying the effects of past discrimination or otherwise leveling the playing field, the courts should scrutinize the political process that led to the decision in question, not merely the end result.
Undoubtedly, Carter's essay is a noteworthy contribution to our scholarly understanding of recent "race-cases" from the Court. It is also terrific teaching material. Carter's relatively brief essay, 34 pages, would make an excellent assignment for students in traditional Constitutional Law courses as well as courses focusing on the Fourteenth Amendment, on Equality, or on Race. It is sure to inspire discussion and student reaction papers.