Distinguished Constitutional Law Professor Mark Tushnet's new book A Court Divided , on the Rehnquist Court is reviewed here by Jeffrey Rosen.
The suggestion is that Rehnquist has been more demonized than effective in repealing the New Deal and the Warren Court, thus the anticipated battle over his eventual replacement (he's 80 years old, fighting throat cancer, and working from home; newspaper speculation has it that he may choose to retire sooner rather than later) may not be as world-changing as partisans believe. In other words, he didn't pull the train as far to the right as feared, so replacing him may leave the world of constitutional law as it has usually been lately: A constant fight between contending political attitudes, expressed in decisions, articulated in opinions, and left to us to deduce the not the winning ostensible principle (that usually appears in the opinion), but the underlying real principle.
The ostensible principle of Plessy v. Ferguson (1896) is that separate is equal when it comes to accommodations, facilities, access, education, for blacks and whites.
The underlying, real principle motivating the decision is white supremacy. That's why it lasted 58 years. It was popular. Among whites. There were far more whites than blacks, and the whites were in control. The tyranny of the majority, majority rule, triumphed. It was a triumph of racism.
See the Ken Burns documentary, Unforgivable Blackness on black prize fighter James Johnson (c. 1905); Rudyard Kipling's poem cheering on the U.S. take-over of the Philippines in 1898 (from Spain) and keeping it; also Puerto Rico and Cuba. It's taken white America time and turmoil to put its racist past behind it: slavery & Jim Crow. Brown v. Board (1954) reverses Plessy, and promises integration of schools. Massive resistance follows. Fifty years later, schools are still segregated by race, with citywide and district wide and other-wide regimes put in place, seeking to rectify the racial imbalance. This is what affirmative action is all about. See Gratz and Grutter v. Bollinger, the U. of Michigan cases, 2003. The military services contributed a masterful brief: We need black officers in case of a war. We can no longer have white officers commanding a largely black all-volunteer army. We'll have fragging again, as in Vietnam. Where do you think we look to get our officers? From the nation's colleges and universities. That's why we want to see plenty of blacks in colleges and universities, even if you have to take race in to consideration to admit them.
That was the decision. Race is okay, as long as not quantified into "quotas" or bonus "points" for race. Too easy to isolate statistically and raise the cry of reverse racism. A little bit of racism is okay to correct past racism. Fight fire with fire. First one side gets burned. Generations pass. Now newcomers on the flip side get burned.
That seems why Sandra Day O'Connor expressed the hope that affirmative action would go by the boards in 25 years.
What kind of ringing constitutional principal does its tip-weight vote pray will disappear in only 25 years?
That's not a constitutional principle. It's an expedient, designed to get us over a rough patch and let the devil take the hindmost.
That's politics.
At the Supreme Court level law and politics, and underlying attitudes common to both, are intermixed. Emotion, expressed as reason, rules the day. But you figured that out for yourself, right?
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