The status of African Americans, more than any other group in the United States, has been defined and impacted by law. Although the days of Jim Crow, sanctioned by law, are long gone, black Americans, by experience, continue to look to the law for protection against discriminatory treatment and for the elusive ideal of equal justice. The State of Black America 2006 Report defined the state of civil rights as "most precarious."1 Sadly, a year later, the state of civil rights is as precarious as ever.
Supreme Court Shift
In 2005, with the retirement of Associate Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist, African Americans joined the rest of the nation in anticipating the replacements for the new vacancies. Appellate Judge John Roberts was first nominated to replace Justice O'Connor, but upon the death of his mentor, Chief Justice William Rehnquist, Judge Roberts was nominated to fill the Court's top seat President Bush then nominated White House Counsel Harriet Miers to the O'Connor seat, but her nomination provoked strong opposition among conservatives and she quickly withdrew. Third Circuit Court of Appeals Judge Samuel Alito was then nominated for Justice O'Connor's seat.
Judge Roberts' nomination was opposed by virtually every civil rights organizations representing African Americans based on his long record of opposing the Voting Rights Act and other civil rights remedies. Nevertheless, Judge Roberts was confirmed by the Senate as Chief Justice of the United States by a 78-22 vote on September 29, 2005.
Judge Alito was also opposed by leading civil rights organizations based on his extensive record as an appellate court judge in civil rights cases. He was confirmed as Associate Justice of the United States Supreme Court on January 31, 2006 by a 58-42 vote. Supreme Court observers and practitioners agree that the addition of Chief Justice Roberts and Associate Justice Alito pushes the Court even further into the conservative camp. While the late Chief Justice was staunchly conservative, Justice O'Connor was often the center-,or "swing vote"-of the Court. For example, Justice O'Connor joined with Justices John Paul Stevens and David Souter, Stephen Breyer and Ruth Bader Ginsberg, to uphold the University of Michigan's affirmative action plan in 2003.2 The new Chief Justice and Justice Alito are likely to vote with the conservative wing of the Court, thereby guaranteeing it a narrow majority and shifting the balance.
With the ascension of these new justices to the Supreme Court, it appears that the United States has entered into a period of time in which the longstanding role of the law as a force for continued progress by African Americans has changed.
School Desegregation Revisited
While school desegregation appears to many Americans to be yesterday's issue, it is under threat today. Two cases that could significantly impede voluntary school integration efforts were argued in the U.S. Supreme Court in December of 2006. These cases are important not just on their own terms, but also because of their potential reach. The days of mandatory desegregation - born as a result of Brown v. Board of Education3 - are all but over. The Supreme Court has not only made it easier for school districts to end their voluntary school desegregation efforts, it has allowed school districts to re-segregate under "neighborhood school" assessment plans.
In the case currently pending in the Supreme Court, school boards in Louisville, Kentucky and in Seattle, Washington determined that they desired to maintain some measure of integrated schools on a voluntary basis. In order to do so, each school district denied assignments if they increase racial imbalance. However, white plaintiffs filed lawsuits Lawsuits against each district alleging that the consideration of race-a necessary component in any attempt to maintain integrated schools-constitutes racial discrimination. …