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The New "Massive Resistance" By: Todd Gaziano
FrontPageMagazine.com | Friday, May 01, 1998


Policy Review | May - June 1998

On May 17, 1954, the U.S. Supreme Court ruled in Brown v. Board of Education that racially segregated public schools were unconstitutional. The unanimous decision dealt a severe blow to the Jim Crow system of state-sponsored discrimination against blacks and other racial minorities. The Court ruled that separate treatment for people of different races violates the Fourteenth Amendment’s guarantee to all Americans of equal protection under the law.

Government officials, who had sworn an oath to uphold the Constitution, should have embraced the Brown decision and moved swiftly to end all forms of racial discrimination. But we all know that did not happen. Instead, Brown was followed by one of the ugliest episodes in America’s painful struggle for civil rights: the South’s "massive resistance" to federal court orders ending state-sponsored discrimination. In a nation built upon the rule of law, public officials fought both openly and surreptitiously to preserve unjust and unconstitutional laws and practices. Their refusal to abide by federal court orders denied justice to millions of blacks for decades.

Even as we rejoice that the Jim Crow system is now history, however, the Constitution’s guarantee of equal protection is again being violated—this time by government-enforced racial preferences. Racial preferences are not simply a benign policy choice over which reasonable people can differ. Since the mid-1980s, the U.S. Supreme Court has ruled unequivocally that racial classifications or preferences of any kind are equally pernicious no matter which race they are intended to help or harm. All state-sponsored racial preference policies are now presumptively unconstitutional and must be struck down, except in the rarest circumstances.

Instead of embracing these clear court decisions striking down racial preferences, however, a shocking new movement of "massive resistance" has re-emerged in defense of the indefensible. True, few advocates of racial preferences are motivated by bigotry, and they do not resort to violence or physical intimidation to enforce their will. But they are, in some ways, more influential than the leaders of the old massive resistance movement.

Unlike their forebears of the 1950s and 1960s, who were fighting a losing cause against the combined will of the three branches of the federal government, the modern heirs of the new massive resistance run the federal bureaucracy and federal law enforcement agencies. In fact, they occupy key civil rights offices of the executive branch as well as the White House itself. And despite court rulings to the contrary, they continue to insist that government entities can and should use racial preferences to distribute economic and educational opportunities.

Forty years ago, many Americans felt anger and disgust toward segregationists such as Arkansas governor Orval Faubus who earned their place in history as leaders of the massive resistance to desegregation. Today’s massive resistance to racial equality is led by another former governor of Arkansas, Bill Clinton.

Massive Resistance in the Past

On March 12, 1956, 101 southern members of Congress issued the "Southern Manifesto," which denounced the Brown decision. The signatories pledged to resist Brown for as long as they could and to use "all lawful means to maintain segregation." They also commended "those states which have declared the intention to resist." Technically, the Brown decision applied only to the school boards that were defendants in that case. State and local officials in the South who supported the manifesto refused to follow the Court’s ruling in Brown and agreed not to desegregate their schools unless and until there was a specific ruling requiring them to do so. They also refused to extend the logical reasoning of Brown to any other government facility or service, such as municipal swimming pools or buses.

As historians have noted, the manifesto gave a patina of respectability to massive resistance in the South. In 1957, flanked by the Arkansas National Guard, Governor Faubus stood in the doorway of Little Rock’s Central High School to prevent nine black students from attending as ordered by a federal judge. President Dwight Eisenhower had to send federal troops to enforce the court order.

In 1963, during his first inaugural address, Alabama governor George Wallace uttered his infamous cry, "Segregation now, segregation tomorrow, segregation forever." On June 11 of that year, Wallace followed through on his pledge to stand in the entrance of the University of Alabama to prevent two black students from registering for classes. President John F. Kennedy nationalized the Alabama National Guard and dispatched a contingent to make Wallace step aside.

As the federal courts struck down the more overt forms of segregation, southern officials simply devised new means of achieving the same ends. The authors of Constitutional Law (1986), a leading constitutional casebook, summarized the discriminatory tactics:

"[T]hroughout the South, school districts devised a bewildering variety of legal strategies designed to slow or stop desegregation. A few communities took the extreme measure of closing their public schools altogether to avoid desegregation. Others adopted complex pupil placement laws giving local officials discretion to place students in different schools on the basis of supposedly nonracial criteria. Still others utilized ‘freedom-of-choice’ plans whereby students were assigned to their old schools unless they applied for transfer. The common feature of all these plans was that they produced virtually no actual [change]."

Eventually, violent confrontations backed by these legal delaying tactics helped convince Congress and the public that dramatic federal legislation was necessary. Offended by the massive resistance to the rule of law, Republicans and progressive Democrats joined together to end the longest filibuster in Senate history. In passing the Civil Rights Act of 1964 and the Voting Rights Act of 1965, they aspired to further the Reverend Martin Luther King Jr.’s dream that one day children would "not be judged by the color of their skin but by the content of their character."

A Threat to Equality before the Law

 

Federal enforcement of the civil-rights laws as originally intended played an important role in helping to end state-sponsored race discrimination in this country. But even as resistance to desegregation faded, the goal of equality encountered a new threat: Federal officials themselves gradually subverted the civil rights laws and transformed many of them from a guarantee of equal treatment to a requirement of preferential treatment for members of certain favored races.

Many call this "reverse discrimination," as if it is typically employed to force the perpetrators of past discrimination to compensate their actual victims. In reality, it is the same kind of racial discrimination that the civil-rights laws were designed to end. The plain language of these landmark statutes as well as the legislative debates that accompanied them indicate that race-conscious preferences had no place in the enforcement of equal protection. The only way to truly "reverse" government discrimination is to end it against all races.

Some defenders of racial preferences would have us believe that an attack on preferences is an attack on affirmative action. It is worth recalling, however, that the term "affirmative action" originally meant taking positive steps to ensure that discrimination did not take place.

President Kennedy signed the first affirmative action executive order (No. 10,925) in 1961. This order prohibited government contractors from discriminating on the basis of race, creed, color, or national origin, and went on to state: "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Early on, federal affirmative action programs largely focused on ensuring that government agencies and contractors enforced the anti-discrimination principles of the civil rights laws.

During the 1970s, however, federal officials began to advance the argument that race-based policies that helped minority races were constitutionally distinguishable from policies that were intended to harm minority races. Such programs were defended on the ground that so-called benign preferences favoring minorities should not be subject to the same legal scrutiny as discrimination harming minorities.

Eventually, this perversion of the civil rights laws was itself challenged as a violation of the equal protection guarantee contained in the Fifth and Fourteenth Amendments to the Constitution. In the past 10 years or so, the federal courts have once again returned to the principles of the civil rights era and have largely declared such race-based preferential treatment to be unconstitutional.

The Supreme Court Rides Again

In 1989, the Supreme Court issued a ruling that has since forced defenders of racial preferences into contortions. In City of Richmond v. J.A. Croson Co., a precedent-setting majority said for the first time that all racial preference programs created by state or local governments, no matter whom they are intended to benefit, are presumptively unconstitutional and must be struck down unless they pass the "strict scrutiny" test. The strict scrutiny test is the most exacting judicial inquiry that exists in the law (see box, page 24). Such a searching inquiry is warranted, said the Court, because "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake," (citing Regents of Univ. of Cal. v. Bakke, 1978).

The strict scrutiny test requires that any program that makes racial distinctions must be "narrowly tailored"—using the means that are the least intrusive necessary—to achieve a "compelling" governmental interest. That may not seem very tough, but in its application, the Supreme Court has almost never found the government’s interest "compelling" enough or its program "narrowly tailored" to such an end. Since the 1940s, not one legislatively or administratively created racial preference program (as opposed to a judicially created remedy) has been upheld by the Supreme Court under that test. The only racially discriminatory action ever upheld under the strict scrutiny test has been the Court’s shameful acceptance of the internment of Japanese Americans during World War II.

The meaning of "compelling interest." To date, a majority of the Court has recognized only one governmental interest that is "compelling" enough to justify a racial preference: remedying the current effects of its own past discrimination. The Supreme Court has held that differences caused by general societal discrimination or noninvidious factors, such as economic or educational deficiencies, do not justify governmental discrimination.

Thus studies that purport to show merely that racial disparities exist in certain arenas of life do not justify government-sponsored race preferences. To be legally relevant, the study must show that a government program was discriminatory and that the past discrimination continues to cause racial disparities. Even this finding is not enough to establish a compelling governmental interest in using preferences if other race-neutral means exist to remedy the past discrimination.

In 1978, Justice Lewis Powell suggested in a solo concurrence in Bakke, that, although diversity for its own sake is not a sufficient interest to justify racial preferences, obtaining the educational benefits that flow from an ethnically diverse student body might be a sufficient interest. But subsequent Supreme Court cases, including Croson and Wygant v. Jackson Board of Education (1986) and recent appellate court decisions interpreting them, have rejected Powell’s view and have recognized that the only compelling governmental interest in taking race into account is to remedy past government discrimination.

The meaning of "narrowly tailored." Even if the government’s interest in racial classifications is a compelling one, it must still show that the challenged program is narrowly tailored to achieve it. Many "affirmative action" programs provide benefits to women and members of newly favored races or ethnic groups that were never subjected to the deprivations of Jim Crow. There can be no remedial purpose for preferring, say, Cambodian Americans if the government never discriminated against them. Moreover, the government cannot justify preferring Cambodian immigrants over, say, recent Polish immigrants. Such over- and under-inclusiveness tends to show that there is no close connection between the challenged program and the supposed compelling interest to redress past discrimination, particularly if the preference program is meant to last indefinitely. Thus, few—if any—state preference programs are constitutional.

In 1995, the Supreme Court ruled in Adarand Constructors, Inc. v. Peña that all federal preference programs are presumptively unconstitutional also. The Supreme Court ruled that all race-based preference programs, "imposed by whatever federal, state, or local governmental actor," including the highway construction set-aside program at issue in that case, must be struck down unless it passes strict scrutiny. The Court reaffirmed the principle that government discrimination was equally pernicious no matter which race was hurt or helped.

Although Justice Antonin Scalia voted with the majority, he wrote separately, as if recalling the reaction to Brown, that lower federal courts should not have to waste their time ruling the statute unconstitutional in each case. He also wrote that government "can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction. Individuals who have been wronged by [actual] unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or debtor race." Justice Clarence Thomas agreed: "There is a ‘moral and constitutional equivalence’ between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law."

The New Massive Resistance

After Adarand, many legal commentators declared the era of racial preferences effectively over. Instead of ending or changing their racial preference programs to comply with Croson and Adarand, however, administrators of preference programs and key officials in the U.S. Department of Justice have tried to excuse or justify them. In fact, a new era of massive resistance to the enforcement of equal protection has begun on several fronts:

The Dellinger Memorandum. Within one month after Adarand was decided, Walter Dellinger, who was then the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum for the general counsels of executive branch agencies that set forth a legal strategy that has the effect of circumventing the Adarand decision. The Dellinger Memorandum seized on the unremarkable fact that the Supreme Court had not gone so far as to declare all the existing preference programs unconstitutional and had left to the lower courts the task of determining which of them passed strict scrutiny.

The memorandum also emphasized language in Justice O’Connor’s opinion that she did not think strict scrutiny was always fatal to preference programs, and that government was not disqualified from acting to redress "the practice and lingering effects of [past] racial discrimination." By emphasizing these points, however, the Dellinger Memorandum attempted to turn the rare exception, where racial classifications might be necessary to redress instances of past governmental discrimination, into the rule.

Finally, the memorandum maintained that promoting diversity might be an acceptable goal if the government had some further objective beyond the achievement of diversity itself. This last notion was based more on wishful thinking than on the law. Although the Adarand ruling did not specifically address such a proposition, the Court in Croson did say that affirmative action programs must be "strictly reserved" for remedying instances of past discrimination. Dellinger was relying on Justice Powell’s 1978 solo concurrence from Bakke, but ignored the holding of even that case, which struck down a quota system for admission to the University of California–Davis Medical School.

The "affirmative action review." In due course, the Clinton administration began its review of the approximately 160 federal race-based discrimination programs on the books. The administration then decided to preserve virtually every one, based on its own twisted reading of the Adarand opinion. To truly appreciate the breathtaking lawlessness of this action, imagine the public reaction if the Eisenhower administration had declared in 1954, when the Court applied the reasoning of Brown to federal schools in the District of Columbia, that racially segregated schools were still permissible in the District.

The administration was forced to drop at least one program—the Pentagon program known as the "rule of two." Under the rule of two, whenever a Pentagon procurement officer could identify two or more qualified minority contractors whose bids were not more than 10 percent above the contract’s fair market value, the contract would have to be set aside for bidding exclusively by "disadvantaged" business enterprises. But changes in a small number of other preference programs are analogous to southern school officials’ switch from explicit segregation to "neighborhood school plans" in which children were forced to attend the largely segregated schools that happened to be in their neighborhoods. Although some of the changes instituted by the administration in a few of the programs appear to be a step in the right direction, the programs are still far from being constitutional.

Even if Justice Powell’s musings in Bakke were the governing law, most current preference programs would still be unconstitutional. Many administrators of current affirmative action programs argue that race is only a "plus factor" in their otherwise nondiscriminatory admissions, contracting, and hiring programs. In fact, many race-exclusive preference programs make race an absolute bar. Whites (including refugees from oppressive or discriminatory regimes) simply cannot apply. Many other programs claim to have a flexible goal, but a simple regression analysis would show that race is the single most important factor explaining why a large number of minority applicants are accorded the favorable outcome over applicants from nonfavored races. Grandfather clauses and literacy tests, though facially neutral, were similarly used to prevent minority voting during Jim Crow. Many of today’s rigged preference programs are legally no different.

Bill Lann Lee. In 1997, the administration nominated civil rights activist Bill Lann Lee to head the Justice Department’s civil rights division. When Lee was asked during his Senate confirmation hearing to submit a list of the existing 160 or so federal preference programs that did not pass strict scrutiny, he said he could not name one. Since no racial preference program has passed that test in 50 years, the notion that all of them pass muster is absurd.

Lee simply dismisses the Supreme Court decisions he does not like with implausible or creative interpretations. As the western regional director of the NAACP Legal Defense Fund in 1989, he demonstrated a willingness to circumvent the Court’s decision in Croson. In fact, he wrote an op-ed in the Los Angeles Times on why others should do the same. Lee’s stated purpose was to convince public officials that Croson did not affect their programs and that they should continue what they had been doing.

In 1997, during his testimony before the Senate Judiciary Committee, Lee summarized the holding of Adarand as follows: Racial preference programs "can be appropriate if they are conducted in a limited and measured manner." But the principal holding of Adarand is that all racial preference programs are presumptively unconstitutional and that the rare exception must satisfy an exceedingly difficult and searching test. Lee surely knew this. "Limited and measured" is not a judicial standard; it means whatever Lee wants it to mean. It is not the same as being "narrowly tailored" (as that term has come to be defined in the law) to further a "compelling governmental interest." The Judiciary Committee was aghast at Lee’s misstatement of Adarand, and even liberal journalists wrote that Lee’s interpretation of Adarand turned the opinion on its head.

The Judiciary Committee refused to recommend his appointment, largely because of his seeming refusal or inability to apply Adarand faithfully. But President Clinton attempted to make Lee the acting head of the civil rights division anyway, where he remains today. This insult to the Senate’s prerogative of advise and consent is even more remarkable because legal scholars have concluded that the acting appointment violates the Vacancies Act.

Highway set-asides. The Clinton administration continues to defend the very highway construction set-aside at issue in Adarand, despite the fact that every federal court that has considered the set-aside has declared it unconstitutional. At a hearing before the Senate Subcommittee on the Constitution in September 1997, Senator John Ashcroft asked the general counsel of the Department of Transportation how many federal courts would have to rule that this program was unconstitutional before the executive branch would obey the law. The general counsel replied essentially that unless the Supreme Court ruled definitively a second time that the program was unconstitutional, the administration would not accept the opinion of any lower federal courts. So far, the administration has been true to its word. It has refused to follow any of the lower federal court opinions striking down the set-aside, preferring instead to appeal every losing decision.

This tactic of appealing every adverse decision to the Supreme Court and refusing to faithfully apply Supreme Court rulings is reminiscent of the resistance strategy articulated in the Southern Manifesto. The Dellinger Memorandum, the administration’s insistence that virtually all 160 federal preference programs are legal, and President Clinton’s appointment of Bill Lann Lee to the Justice Department’s civil rights division are to the same end. The game played by southern school officials, mayors, and governors throughout the 1950s and 1960s is now being played by the federal preference apologists who refuse to give effect to the Croson and Adarand decisions. This also gives cover to state officials who want to continue their racial preference policies.

Turning the Screws

Administration officials have also worked with other entities to undermine landmark decisions by the federal appellate courts:

Race-based scholarships. In Podberesky v. Kirwan (1992), the Fourth Circuit Court of Appeals struck down a race-based scholarship program at the University of Maryland. Instead of embracing a decision that promotes equality under the law, the general counsel of the U.S. Department of Education warned all colleges and universities not to revise "race-targeted aid programs." Unlike the Dellinger Memorandum, the general counsel’s letter came with an implied threat that colleges and universities could lose federal funding if they complied with the Podberesky decision.

Racial preferences in university admissions. In Hopwood v. Texas (1996), the Fifth Circuit Court of Appeals struck down the use of "diversity" as a rationale for considering race in college admissions, and ruled that the University of Texas Law School could not use race at all as a factor in its admissions decisions. The Justice Department filed a brief asking the Supreme Court to overturn the decision. Norma Cantu, who heads the Office of Civil Rights at the U.S. Department of Education, went much further: She demanded that Texas disobey the court order. Despite the plain language of the opinion that prohibited race from being considered at all, she argued that the decision did not invalidate all racial preferences at the University of Texas or elsewhere, but only forbade the precise practices that were previously employed.

When the Supreme Court allowed the Hopwood opinion to stand without comment, Cantu put Texas in a bind. She threatened to withdraw $500 million in education federal funds if the state complied with the then-final court order. The U.S. Department of Transportation had issued a similar threat to the Metropolitan Transportation Authority of Houston after a federal district court had enjoined Houston from enforcing the federal set-aside program at issue in Adarand.

In the standoff with Cantu, the public rebuke of the administration’s position was so strong that Walter Dellinger, who by then had become Acting U.S. Solicitor General, announced that Texas could follow the Fifth Circuit’s order after all. The message to other colleges and universities was clear, however: Unless they litigated their preference programs all the way to the Supreme Court, they could not abandon them without incurring the administration’s wrath.

Racial preferences in hiring—and firing. In 1988, the school board in Piscataway, New Jersey, had to lay off one of two female teachers that it claimed were exactly equal in seniority and other qualifications—except that one was white and the other was black. Instead of drawing lots, the board terminated the white teacher in order to preserve racial diversity within the school’s faculty. During the Bush administration, the Justice Department filed suit on behalf of the dismissed teacher, Sharon Taxman, who won in federal district court in 1993. On appeal, Deval Patrick, Clinton’s Assistant Attorney General for Civil Rights, withdrew the department’s representation of Taxman and sought to intervene on behalf of the school district. But the Third Circuit affirmed that racial diversity did not constitute a sufficient interest under Title VII to justify a race-conscious action.

After the Supreme Court decided in 1997 to hear the appeal in Taxman v. Piscataway, preference apologists decided that they could not let the Supreme Court hand them another crushing defeat. A coalition of civil rights groups, who had approved of Taxman’s layoff for years, led the effort to collect $433,500 to pay Taxman to settle the case. This use of hush money to strip the federal courts of precedent-setting jurisdiction is a novel tactic. Proponents of preferences have perfected the art of ignoring or avoiding lower court opinions they do not like. The force of repeated Supreme Court decisions is harder to deal with. If preference advocates can force every victim of discrimination to litigate all the way to the Supreme Court and then settle with the rare few who make it, they can perpetuate their system much longer. What if the segregationists had done that with Linda Brown and every subsequent school desegregation plaintiff whose lawsuit reached the Supreme Court? Thankfully, the segregationists did not have the imagination of today’s preference advocates.

Massive Resistance in the States

Unfortunately, many state officials have followed the lead of the federal government. In Texas, university officials initially denounced the federal appellate court decision in Hopwood v. Texas. Even now, Texas officials are implementing a number of questionable changes in admission and scholarship rules to try to achieve the same racial results. And President Clinton has pledged to help these efforts.

In a 1997 speech to black journalists, President Clinton pledged to try to "come up with some more funds and some more [race-]specific scholarship programs to try to overcome" Hopwood. This tactic is clearly unconstitutional under the Fourth Circuit’s Podberesky decision. It is also reminiscent of the scheme some communities concocted in the 1960s when they purported to use private money to start supposedly private schools with state support, a scheme that the Supreme Court ultimately struck down on equal-protection grounds.

In California, various federal, state, and local officials have pledged to fight the implementation of Proposition 209, which California voters passed last year to end state preferences on the basis of race, ethnicity, and sex. The first tactic of state activists, including at that time Bill Lann Lee, was to file a suit arguing that Proposition 209 violated the Fourteenth Amendment. In essence, Lee and the others argued that the Equal Protection Clause often requires "unequal" or preferential treatment.

This interpretation of the Fourteenth Amendment is so far out of the mainstream that it turns the Amendment on its head. Accordingly, a unanimous panel of the Ninth Circuit Court rejected the challenge in one of the most strongly-worded opinions in recent years. In a 1997 ruling, the court said that it would be "paradoxical to conclude that by adopting the equal protection clause of the Fourteenth Amendment, the voters of the state thereby had violated it." The appeals court also said, "There is simply no doubt that Proposition 209 is constitutional. . . . After all, the ‘goal’ of the Fourteenth Amendment, ‘to which the Nation continues to aspire,’ is ‘a political system in which race no longer matters.’ " On November 3, 1997, the Supreme Court made that opinion final when it refused to review the decision.

But the opponents of Proposition 209 did not give up; they simply switched tactics. Local California officials vowed to fight implementation of the initiative. The vice mayor of Oakland promised to "chip away" at 209 until its effectiveness is negated. San Francisco mayor Willie Brown refused to alter his city’s affirmative action programs in light of Proposition 209. He now claims that the City of San Francisco has never given any preferential treatment to minorities, and therefore need not change a thing. A Los Angeles County affirmative action officer admitted to USA Today that "I am very defiant when it comes to something that had no business being voted on."

The federal government is lending a helping hand to local California officials who want to thwart Proposition 209. Norma Cantu, the head of the Office of Civil Rights (OCR), has begun an investigation of California law schools, at the request of groups who were opposed to Proposition 209, to determine whether the elimination of racial preferences violates federal education and employment laws.

The OCR investigation is premised in part on the notion that Title VI of the Civil Rights Act may forbid the use of standardized test scores unless they result in proportional racial admissions. UCLA Law School dean Michael Rappaport, who was not a supporter of Proposition 209, is dumbfounded by this theory, which he says amounts to the suggestion that "an academic institution can’t use academic criteria when evaluating candidates for its academic programs." Investigations like the one Cantu has launched in California pressure many colleges and universities to continue their racially discriminatory admissions programs.

 The Day of Reckoning

The defiant attitude of the L.A. County affirmative action officer betrays a certain desperation. The school board in Piscataway, New Jersey, was just as defiant up until the day it chipped in money to settle the Taxman wrongful-termination case and prevented the Supreme Court from issuing a ruling. Public officials and countless "affirmative action" administrators in other states are engaged in similar desperate behavior in an attempt to preserve their racially discriminatory programs. Well intentioned or not, however, these programs are nearing their day of reckoning.

The American people have a right to insist that civil rights officials be forceful advocates of equal treatment under the law and not participants in a new massive resistance to the rule of law. Yet, in so many ways, executive branch officials have opposed or resisted the courts’ equal protection decisions. That does not mean there are no open questions in the law of affirmative action, but the Clinton administration has been on the losing side of every major court ruling. Most programs that are pushed by federal civil rights officials involve quotas and set-asides, pernicious presumptions, test "norming," blatant double standards, and other elements that are so far from constitutional that even a relaxed reading of Croson and Adarand would invalidate them.

Eventually, the federal courts became frustrated with the massive resistance in the South and resorted to taking over and running many public facilities. Although this type of judicial activism, which usurps the democratic powers of the political branches, may have been necessary to combat the evil of that time, it created problems of its own. Not only were courts ill suited to micromanaging schools, bus schedules, and other public facilities, but the judicially enforced mandates engendered more bitterness, resentment, and polarization of the races than would have resulted if the elected officials had accepted the courts’ early decisions and moved swiftly to implement them. It took the federal courts up to 20 years to desegregate the South after the Brown decision, but the federal courts are now more used to exercising extraordinary powers.

It would be tragic for our country, indeed, if the new resistance leaders of our age prolonged and deepened the pain of racial inequity, only to force the federal courts once again to impose their own remedies.


Todd Gaziano is a senior fellow in legal studies at the Heritage Foundation specializing in constitutional issues.


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