The U.S. Supreme Court did not cover itself in glory when in 1896 it ruled 7-1 in Plessy v. Ferguson that “separate but equal” segregated public facilities did not violate the Equal Protection Clause of the Constitution’s 14th Amendment. It took the high court 58 years to begin the process of reversing the stain of Plessy.
In 1954, the “Warren Court,” in a unanimous decision, ruled in Brown v. Board of Education that separate education facilities are inherently unequal. It appeared separate but equal was dead. But it wasn’t.
The court delayed ordering the states to enforce its decision in Brown. When it did, it instructed lower federal courts to “enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondiscriminatory basis with all deliberate speed.”
Thurgood Marshall, who had represented Brown and argued the case before the Supreme Court, stated that the court’s use of the language “with all deliberate speed” meant S-L-O-W. He was right.
The high court should be ashamed of its use of “with all deliberate speed” to undercut its decision in Brown. But the Supremes have a penchant for finding ways to slow-walk both their decisions and the remedies that flow from them. And that brings us to the court’s current consideration of three cases involving partisan gerrymandering.
The high court’s glacial approach to finding and implementing a remedy for racial segregation in public education has a parallel in respect of its tortured consideration of partisan gerrymandering. For a very long time, the high court viewed partisan gerrymandering as something that it should not and could not address. That changed in 1962 with the court’s landmark decision in Baker v. Carr.
In that case, the court ruled 6-2 that congressional districts of unequal size were an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. Writing for the majority, Justice William Brennan concluded that the redistricting case raised justiciable issues. By 1964, the court had ruled that congressional and state legislative districts had to be approximately equal in size.
However, over the ensuing half-century, the courts have been reluctant to grapple with the much more vexing problem of the drawing of district lines such that only one party has any real opportunity to win. The court’s reluctance to come to grips with this problem has permitted both parties to use partisan gerrymandering to turn democracy on its head.
There is no doubt that gerrymandering has enabled members of Congress to select who gets to vote for them rather than the other way around. Instead of us picking the congressmen we want, elected officials now pick the voters they want. That’s election rigging.
The last time the court confronted this issue, in 2004, it was bitterly divided and, not surprisingly, it punted. Justice Anthony Kennedy was the swing vote in the decision to not step into the case from Pennsylvania, but he did say the court might intervene in subsequent cases of partisan gerrymandering. Think of that as more “with all deliberate speed.”
Now the court is considering three cases of partisan gerrymandering from North Carolina, Wisconsin and Maryland. The first two are examples of GOP election rigging. The Maryland case is one where the Democrats have run amok. By June, we’ll know if the court is finally willing to rein in partisan gerrymandering or if it will punt again.
But even if it curtails partisan gerrymandering, its work will be incomplete. That’s because none of these cases presents the opportunity for the court to deal with the equally vexing and related problem of racial gerrymandering.
According to Ballotpedia, there are 122 majority-minority congressional districts. These are districts that have a supermajority of African-Americans or Hispanics, thus assuring that a minority wins. However, packing minorities into these districts has enabled the Republicans to win many other districts that would have otherwise been competitive. That’s how partisan and racial gerrymandering reinforce each other.
In the 1990s, the court decided three cases from North Carolina that challenged the constitutionality of these racially contrived districts. Unfortunately, in the final case, Easley v. Cromartie, the court ruled 5-4 against the challenge when then-Justice Sandra Day O’Connor switched her vote after having previously said that “a reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries ... bears an uncomfortable resemblance to political apartheid.”
A new case successfully challenging the constitutionality of majority-minority districts is urgently necessary because the best way to curtail unconstitutional partisan gerrymandering is to simultaneously curtail unconstitutional racial gerrymandering. Racial minorities no longer need racial supermajorities to win. Think Barack Obama.
The practice of bobbing and weaving brought about by the Supremes’ use of “with all deliberate speed” is no protective cloak. What it really does is undermine public trust in the Supreme Court. And that is especially dangerous in today’s hyper-polarized political climate.
Happily, not all Supremes default to dilatory tactics. My favorites are Diana Ross, Florence Ballard and Mary Wilson.
Times-News columnist LeRoy Goldman is a Flat Rock resident. Reach him at firstname.lastname@example.org.