By LeRoy Goldman
Guest Columnist

Published: Monday, April 28, 2014 at 4:30 a.m.

The Supreme Court: A Lagging Indicator

Most of us have heard of leading and lagging indicators. Economists rely upon them.

Bond yields are a good example of a leading indicator because they frequently predict the trajectory of the stock market and the economy. Leading indicators point the way forward.

Lagging indicators, on the other hand, look backward. They serve to confirm conclusions about something that has occurred or is underway. The unemployment rate is a lagging indicator. If it's rising, we can be confident the economy is underperforming.

We can more easily penetrate the fog of the U.S. Supreme Court, its culture and its decisions by understanding that it is a lagging indicator. It inches forward by looking backward. It breaks new ground ever so slowly, constrained by its self-imposed necessity to reach decisions based upon the precedents established by prior decisions.

The high court prides itself in its belief that its decisions are based on the rule of law and not on popular opinion. Yet the snail-like pace it sets breaking with the precedents set in earlier court decisions too frequently imprisons the court and delays justice.

Let's look at one of the nation's most incendiary and corrosive issues, race, from this perspective. Racial prejudice was alive and well at the nation's birth. Shamefully, it is part of America's DNA. Not even the Civil War could defeat it. But it is also the case that enormous progress has been made over the past half-century in combating racial discrimination. Lamentably, no progress has been made in thwarting racism's evil twin — reverse racism.

Almost two generations after the Civil War ended, the Supreme Court ruled in Plessy v. Ferguson in 1896 that state laws mandating racial segregation in public facilities were constitutional under the "separate but equal" doctrine. The vote was not close, 7-1.

It took another half-century for the court to overturn that doctrine. It took up Brown v. Board of Education in the spring of 1953 but could not reach a decision. The principal stumbling block was Chief Justice Fred Vinson. But in September 1953, Vinson died and was succeeded by Earl Warren.

In 1954, almost a century after the Civil War, the court ruled 9-0 that state laws establishing separate educational facilities for black and white children were unconstitutional. Such schools, the court reasoned, were inherently unequal.

It had taken the court nearly 100 years to stumble into the truth. Now that's a lagging indicator.

Last Tuesday, the court handed down its decision in Schuette v. Coalition to Defend Affirmative Action. By a vote of 6-2, it upheld the state of Michigan's approval of Proposal 2, which had been approved by 58 percent of the state's voters in 2006. Proposal 2 prohibited Michigan's public colleges and universities from granting preferential admissions treatment to individuals based upon race. The ruling may also apply to the awarding of public contracts and to hiring policies of state and local employees.

Although there were several concurring opinions, there is little doubt that the court has made clear that voters have the power and the authority to ban affirmative action.

But the controlling opinion of the court, written by Justice Anthony Kennedy and joined by Justices John Roberts and Samuel Alito, is also important for what it did not do. Refusing to overturn prior precedents respecting race (1969, 1982 and 2003), Kennedy said, "The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the states may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions."

Justices Antonin Scalia and Clarence Thomas concurred with Kennedy's support for the ban approved by Michigan voters, but they would have gone further and overruled the prior precedents set by the court. Justice Stephen Breyer was the sixth vote to uphold the Michigan ban, but his reasoning was far narrower.

Kennedy's gambit of now you see it, Michigan's ban is constitutional, but now you don't, the previous precedents are unaffected, might have made sense if he had been able to do what Earl Warren did in 1954, unify the court. But he didn't.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a blistering 58-page dissent that thundered "race matters" no less than 11 times. Her dissent would have had the court overturn the outcome of Michigan's approval of Proposal 2 because she believes the election outcome was influenced by racism.

Upon careful examination, her rationale is not only fallacious, it's frightening. Proposal 2 banned the use of race in college admissions. Justices Sotomayor and Ginsburg turn Proposal 2 on its head and state that the courts have the authority to overturn the Michigan election because they know its outcome was racist. Their basis for that knowledge rests solely on the fact that a large majority, 58 percent, of the voters supported Proposal 2.

Their argument is reverse racism run wild. It goes like this: If you don't agree with me, you're a racist. Think of it this way: Had Mitt Romney won the election in 2012, and had Barack Obama gone to court and alleged that his defeat was the result of racism, Justices Sotomayor and Ginsburg likely would have voted to nullify the presidential election because "race matters." It's madness!

The Supreme Court thinks of itself as a leader. In fact, it's a laggard.

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