Since 1993 the Supreme Court has consistently chipped away at the historic Voting Rights Act passed by Congress in 1965 to counter a century of discrimination in voting and elections in the South.
Yesterday a divided 5 to 4 court did so again - saying the state of Georgia is not required to keep a second black-majority voting district that was originally created in 1990.
Much of the American dilemma of race has played out in the high court in modern times, beginning with the Brown school-desegregation case. Yet, even as politicians this week debated apologizing for slavery, the high court is deemphasizing race, preferring a "colorblind" approach. Since 1993, the number of minority racial districts in the South has declined from 17 to eight because of court decisions.
"This is another defeat to the minority political advances of the 1980s and 1990s," says Frank Parker, a law professor at Washington and Lee University in Lexington, Va. "The Justice Department and black voters in Georgia were saying it was possible to meet the Supreme Court standard, but it seems like the court ... is saying ... these criteria can't be met."
In upholding a lower Georgia court, Justice Anthony Kennedy suggested the changes sought in Georgia would be burdensome and inefficient for the other voting districts and were not required by law. "The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies," Justice Kennedy added in a frank closing statement. He was joined by Chief Justice William Rehnquist, and Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas.
Writing in dissent, Justice Stephen Breyer said the majority "is legally wrong" because the Georgia legislature approved the district, and this, not a lower court, was the authority held to in Supreme Court precedent. He was joined by Justices Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
As of 1990, only two blacks sat in the 112 seats covering nine Southern states in the US House of Representatives. Under the Voting Rights Act, those states were required to end discrimination. (The two existing seats, in Georgia and Mississippi, existed because of a 1986 Supreme Court ruling that said states had a duty to create minority voting districts if possible.)
After the 1990 census, and partly because of a more aggressive civil rights office in the Bush administration, legislatures in those states agreed to create a total of 13 new black-majority districts and two Hispanic districts. The action altered the complexion of Congress.
Yet almost immediately, a deeply divided Supreme Court began to ask different questions. It questioned the interpretation of the Equal Protection Clause of the 14th Amendment, arguing that the newly gerrymandered districts might threaten the equal rights of white voters living in those areas.
In a 1993 case, Shaw v. Reno, the court denounced the "bizarre" shapes of racially crafted districts as impractical. In 1994, the court went further, stating that race itself could no longer be a "predominant" factor in creating districts, although it could be one of several factors. Last year, the court attempted to spell out what "predominant" meant; but in a concurrence to her own majority opinion, Justice O'Connor seemed also to say that race could be a predominant factor, so long as the district was not bizarrely shaped but was compact.
The civil rights community viewed yesterday's case as a crucial one. The Justice Department argued the Georgia district met a reasonable criterion, being compact and crossing few county lines.
A three-judge district court in Georgia last year disagreed, saying too many county lines were crossed.
The case is part of a pattern of rulings that has steadily eliminated race as a classification of rights, including in affirmative action. Each of the voting rights cases has won by a single vote, and the cases have caused bitter disagreements and animated debate among the nine justices.
Justice Souter, in a dissent last term, said the court's entire four-year rethinking has been conceptually flawed. A "failure to provide a practical standard for distinguishing between the lawful and unlawful use of race" has resulted in "inevitable confusion," Souter wrote.
Conservative justices such as Justices Scalia and Thomas seek to rule race out of the equation entirely.