IS the Supreme Court reneging on America's commitment to end racial discrimination? That question, which has been raised with growing frequency in recent years during the court's tilt to the right, is being asked anew in light of decisions handed down during the term that ended this month.
It would be ironic if the Supreme Court were leading a retreat on civil rights, because the modern civil rights era began, for practical purposes, with the court's 1954 ruling in Brown v. Board of Education. In Brown, the high court both laid the constitutional foundation for the civil rights movement and presented what still is white America's most eloquent statement of the moral imperative for racial equality.
But in a series of decisions dating back at least to 1989, the Supreme Court has seemed to imply that laws intended to eliminate racial bias and remedy its historical effects have gone too far, or at least have veered off course. The court has restricted racial set-aside programs for government contractors, raised barriers to job-discrimination lawsuits, eased the conditions for lifting school-desegregation orders, and hedged the scope of the federal Voting Rights Act.
In two of its most controversial rulings this term, the court said that a black man who was fired from his job couldn't win a discrimination suit without concrete proof of racial bias, even though he proved that the reasons for the firing given by the employer were false; and it ruled that a bizarre black-majority congressional district in North Carolina drawn by the legislature under the Voting Rights Act might violate the rights of white constituents.
Many critics of these and other recent Supreme Court decisions contend they are evidence that a majority of the current justices are indifferent to civil rights.
There are other ways to look at these cases and the trend they seem to represent, however. The rulings have struck blows at laws that can at least be questioned on legitimate grounds.
For one thing, some of the laws go beyond any attempt to eliminate and punish current racial discrimination against individual and identifiable victims; rather, they seek to remedy the lingering effects of past discrimination - in education, jobs, or housing - by granting rights to African-Americans or other minorities who historically have been disadvantaged. That unquestionably is a rational and morally supportable policy.
Yet in some cases, the effect of such laws is to give preferential treatment to minority citizens who were not themselves victims of racial discrimination over white citizens who (and even whose forebears) did not practice discrimination.
Now, such outcomes - though they arguably are unfair at the level of individuals - may be inevitable, and they are a cost that probably is sustainable by a society struggling to overcome a centuries-long legacy of racism. But it is hardly alone proof of racism when judges, lawmakers, or others raise doubts about such outcomes and try to limit them.
There is much evidence in polls and popular culture that Americans generally back affirmative action and a supportive legal infrastructure.
But it shouldn't be ignored that many Americans - mostly white, but some blacks and other minority members as well - also are uneasy at the extent to which civil rights orthodoxy in the US and the embodying legislation have come to embrace group rights over individual rights, deliberately race-conscious solutions to societal problems, the "race norming" of certain performance standards, and the prescribing of equal outcomes as well as equal opportunities in various areas of American life.
It's true that some conservatives utter a lot of cant about "reverse discrimination" and a "color-blind society" (that can be like favoring a "level playing field" when your team has the ball on the other team's goal line). Still, only the most biased-against-bias can blithely dismiss such warnings as that issued by Justice Sandra Day O'Connor in the recent Voting Rights Act case: Racial classifications "pose the risk of lasting harm to our society" as they may "balkanize us into competing racial factio ns."
To some critics, the Supreme Court is beating a retreat on civil rights. But to other observers, the court is simply trying, with due caution, to pick its way - and the nation's - through the most bramble-strewn thicket in the American experience.