Jack Salzman, Cornel West Struggles in the Promised

Affirmative Action: African American and Jewish Perspectives \\ 337
15. One wonders to what constitutional command Justice O'Connor's opinion
referred. While her opinion quoted Justice Douglas' dissent in Wright v. Rockefeller,
the Supreme Court has never held that the Constitution encompassed an affirmative
right to an integrated society. The Fourteenth Amendment's equal protection clause,
and for that matter all other constitutional and statutory provisions addressing
racial discrimination, are prohibitions against discrimination, not commands to weld
together "multiracial, multireligious communities."
Lawyers for minority plaintiffs in school and housing desegregation cases have
faced high and often insurmountable barriers when they seek to weld together multiracial
communities. See, for example, Milliken v. Bradley (1974) and Missouri v. Jenkins
(1995).
16. See 125 L.E2d 511 at 529; 125L.E2d of 530, 532; 125 L.E2d at 535.
17. The Supreme Court and lower federal courts have credited the arguments by
white plaintiffs in the Shaw line of cases that majority-minority electoral districts
stereotype African Americans by assuming they all think alike. It is somewhat anomalous
that white plaintiffs who have no demonstrated history of concern about the
well-being of African Americans (as evidenced by their own depositions taken in
these cases) should presume to have the standing to determine that this "stereotype,"
which does not inevitably follow as a consequence of majority-minority districts, is
more harmful than the submersion of black voters' political influence in white racial
bloc voting. Even more troubling is the Supreme Court's embrace of these dubious
concerns.
18. Under Supreme Court jurisprudence, governmental actions that infringe
upon "fundamental rights" (such as speech, privacy or the exercise of religion) or that
involve "suspect classifications" (e.g. race, ethnicity or national origin) are subject to
"strict scrutiny." They can survive only if they are necessary to meet a "compelling
state interest," usually to remedy past discrimination, and even then the remedy must
be "narrowly tailored" to minimize its effect on others. See Kovematsu v. United States
(1944).
19. Sbawv. Hunt (1996).
20. Although the Supreme Court ruled that the original plaintiffs did not have
standing, it was the wrong standing decision. The correct standing decision would
have applied the pre-existing case law and determined that plaintiffs could not
demonstrate a concrete injury that justified the exercise of a federal court's jurisdiction.
Justices White and Stevens in Shaw and Justice Stevens in the Georgia case,
Miller v. Johnson, dissented on the ground that plaintiffs had not demonstrated that
they were injured and thus lacked standing. One amicus brief, submitted by the
Washington Legal Foundation, argued the remarkable proposition that white plaintiffs
suffered an injury "regardless whether the 'threat' to representative democracy
comes to pass or whether elected officials catch the 'signal' that they have been sent
regarding who (sic) they are supposed to be representing." In other words, according