Whatever statement President Reagan makes with his first appointment to the Supreme Court, the fact will remain that the last three Republican presidents -- Nixon, Ford and now Reagan -- will have appointed a total of six justices, the majority of the court. And in one area -- racial discrimination -- that Republican court already has flipped back the pages of the calendar. Losing Potter Stewart doesn't really matter, because the gradual erosion of the court's firm opposition to discrimination had already begun.
Historically, the Supreme Court contended that its duty was not to look into motive -- what went on inside someone's mind -- but only to determine whether what was done squared with the Constitution. What is important is that the court now plans to look at racial discrimination cases and determine whether there was an intent to discriminate. And that's very new.
Arthur S. Miller, professor emeritus of law at George Washington University, who is writing a book on the Supreme Court, put it this way:
"Without violating the Constitution, black Americans can be without jobs, have their children in all-black, poorly funded schools, have few opportunities for decent housing and have very little political power. Separate-but-equal, dead in the formal law, has been replaced by what might be called 'equal-but-separate.'"
The court has been making it tougher and tougher for blacks to prove discrimination by changing the basis of racial bias. This is the new "RealLogic of the Majority:" Racial discrimination is simply the odd behavior of a few misguided individuals, so we don't need across-the-board remedies. Just focus on the misguided individuals and leave the system intact. By switching the emphasis away from the victim of discrimination, the court focuses on the badguy perpetrator, making the court's job simply to neutralize his inappropriate conduct. Forget the social conditions that have led to racial discrimination. Now the victim must prove that there was an intent to discriminate.
Says Miller: "The justices have placed an almost insurmountable burden on those victimized by increasingly sophisticated means of discrimination. Establishing an improper motive -- a subjective frame of mind -- is simply not possible in many instances. . . . Plessy v. Ferguson [which invented the separate-but-equal rule] is being reborn, in a different guise."
And the court is not just waiting for the cases it wants to rule on to be brought to it; it is taking the offensive in this drive. Lower courts are being asked to bring certain cases up to the highest level so that the court may rule.
Item: City of Memphis v. Greene. A street that led from a white enclave to a black community was blocked off, supposedly to reduce the traffic flow. Black residents challenged this in court, showed they were adversely affected, and won. But the Supreme Court reversed the lower court. The action was just inconvenient to the blacks, the court ruled. No discriminatory motive could be proven.
Item: Washington v. Davis. The high court held that the District of Columbia's recruiting practices for policemen were valid in 1976, although blacks failed at a rate four times higher than whites. The reason: No racially discriminatory purpose was proven. Motive again.
Item: City of Mobile v. Bolden. A plurality of the court upheld Mobile's at-large system of electing city commissioners over a claim by blacks that they were encountering bias in being frozen out of the political community. Said the court: Discriminatory purpose is necessary. "That can be shown," said Justice Potter Stewart, "only through proof that an action was undertaken at least in part 'because of,' not merely 'in spite of,' its adverse effects upon identifiable groups."
Justice Thurgood Marshall and others have issued bitter and often eloquent dissents in these cases, but to no avail, given the conservative majority.
"I think it makes it awfully difficult to prove intention," said Miller. "How do you prove what the subjective intention of a person is?"
A few weeks ago, Attorney General William French Smith also announced a major departure from two decades of civil rights policy and declared and end to his department's vigorous pursuit of mandatory busing, and strong disapproval of the use of racial quotas in employment discrimination cases. He told the American Law Institute: The goal "must always be genuinely color-blind action. . . . The time has come in America when more can be accomplished by emphasizing the aspirations most Americans have in common irrespective of race: a high quality of education for their children and the opportunity to make the most of their individual abilities."
This would be great if this was a color-blind country, but it isn't.
NAACP Head Benjamin Hooks said recently that "for the first time since the Hoover era, all three branches of the federal government are viewed by many to be acting against the poor, the handicapped, blacks and other minorities."
In short, you can't tell the victims that they are really victors and expect them to believe it. The victims know better, and no amount of fancy Constitional revisionism will obscure the fact that they're being shafted by the highest rulers of their land.