Document Type

Article

Publication Date

2012

Abstract

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. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" or "post-racial" jurisprudence, which severely constrains the circumstances in which their political power can effectively be exercised. 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; 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; and Northwest Austin v. Holder, 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, particularly Justice Thomas.

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 counter-majoritarian difficulty is likely to become much more difficult.

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