“WITH ALL DELIBERATE SPEED” STINKS
By:
LeRoy Goldman
Columnist
TimesNewsOnline
April 15, 2018
The United States Supreme Court did not cover itself in glory when in
1896 it ruled 7-1 in Plessy v. Ferguson that “separate but equal”
segregated public facilities did not violate the Equal Protection
Clause of the Constitution's 14th amendment. It took the
High Court 58 years to begin the process of reversing the stain of
Plessy.
In 1954 the Warren Court in a unanimous decision ruled in Brown v.
Board of Education that separate educational facilities are
inherently unequal. It appeared separate but equal, was dead. But it
wasn't.
The Court delayed in ordering the states to enforce its decision in
Brown. When it did it instructed lower Federal courts to “enter
such orders and decrees consistent with this opinion as are necessary
and proper to admit to public schools on a racially nondiscriminatory
basis with all deliberate speed the parties to these cases”.
Thurgood Marshall, who had represented Brown and argued the case
before the Supreme Court, stated that the Court's use of the language
“with all deliberate speed” meant, “S-L-O-W”. He was right.
The High Court should be ashamed of its use of “with all deliberate
speed” to undercut its decision in Brown. But the Supremes have a
penchant for finding ways to slow-walk both their decisions and the
remedies that flow from them. And that brings us to the Court's
current consideration of three cases involving partisan
gerrymandering.
The High Court's glacial approach to finding and implementing a
remedy for racial segregation in public education has a parallel in
respect of its tortured consideration of partisan gerrymandering. For
a very long time the High Court viewed partisan gerrymandering as
something that it should not and could not address. That changed in
1962 with the Court's landmark decision in Baker v. Carr. In that
case the Court ruled, 6-2, that congressional districts of unequal
size were an unconstitutional violation of the Equal Protection
Clause of the 14th amendment. Writing for the majority,
Justice William Brennan concluded that redistricting case raised
justiciable issues. By 1964 the Court had ruled that congressional
and state legislative districts had to be approximately equal in
size.
However, over the ensuing half century the Courts have been reluctant
to grapple with the much more vexing problem of the drawing of
district lines such that only one party has any real opportunity to
win. The Court's reluctance to come to grips with this problem has
permitted both parties to use partisan gerrymandering to turn
democracy on its head.
There is no doubt that gerrymandering has enabled members of Congress
to select who gets to vote for them, rather than the other way
around. Instead of us picking the Congressman we want. Elected
officials now pick they voters they want. That's election rigging.
The last time the Court confronted this issue in 2004 it was bitterly
divided and, not surprisingly, punted. Justice Kennedy was the swing
vote in the decision to not step into the case from Pennsylvania, but
he did say the Court might intervene in subsequent cases of partisan
gerrymandering. Think of that as more “with all deliberate speed”.
Now the Court is considering three cases of partisan gerrymandering
from North Carolina, Wisconsin, and Maryland. The first two are
examples of GOP election rigging. The Maryland case is one where the
Democrats have run amok. By June we'll know if the Court is finally
willing to rein in partisan gerrymandering or if they will punt
again.
But, even if they curtail partisan gerrymandering, their work will be
incomplete. That's because none of these cases presents the
opportunity for them to deal with the equally vexing and related
problem of racial gerrymandering.
According to Ballotpedia there are 122 Majority-Minority
congressional districts. These are districts that have a majority of
African-Americans or Hispanics in order to guarantee their election.
However, packing minorities into these districts has enabled the
Republicans to win many other districts that would have otherwise
been competitive in the absence of the Majority-Minority districts.
In the 1990s the Court decided three cases from North Carolina that
challenged the constitutionality of these racially contrived
districts as racial gerrymanders. Unfortunately In the final case,
Easley v. Cromartie, the Court ruled 5-4 against the challenge when
then Justice Sandra Day O'Connor switched her vote after having
previously said, “a reapportionment plan that includes in one
district individuals who belong to the same race, but who are
otherwise widely separated by geographic and political
boundaries...bears an uncomfortable resemblance to political
apartheid”.
A new case successfully challenging the constitutionality of
Majority-Minority districts is urgently necessary because the best
way to curtail unconstitutional partisan gerrymandering is to
simultaneously curtail unconstitutional racial gerrymandering. Racial
minorities no longer need racial super majorities to win. Think
Obama.
The Supreme's addiction to the slow motion of “with all deliberate
speed” leads them to believe it shields them. What it really does
is undermine public trust in the Supreme Court. That is especially
dangerous in today's hyper-polarized political climate.
Happily, not all Supremes bow to dilatory tactics. My favorites are
Diana Ross, Florence Ballard, and Mary Wilson.
Times-News
columnist LeRoy Goldman is a Flat Rock resident. Reach him at
tks12no12@gmail.com.
