When the Supreme Court made its historic ruling to end state-sponsored segregation in Brown v. Board of Education in May 1954, the justices were unanimous. It was a consensus not easily reached, yet it came about because the justices were of a single mind that they should be of one mind in ending segregation.
This week, almost 60 years after Brown v. Board of Education, a divided court stumbled to a decision that allows voters to overturn Constitution-based principles of equality by a simple vote at the polls.
Adam Liptak, The New York Times' veteran correspondent at the Supreme Court, reported it was, "a fractured decision that revealed deep divisions over what role the judiciary should play in protecting racial and ethnic minorities." This is in distinct contrast to the Warren court's ending of segregation, in which the chief justice worked for months with willing justices to achieve unanimity.
But, the divided Roberts court was all over the landscape, with the majority itself dividing three, two and one in its reasons. In this instance, the voters of Michigan passed an amendment to the state constitution banning affirmative action based on race. (The justices made clear they were not ruling on the constitutionality of affirmative action itself.)
Justice Anthony M. Kennedy ruled for three justices, saying the case was not about resolving affirmative action, "It is about who may resolve it." Then came the clincher: "There is no authority in the Constitution of the United States or in this court's precedents," he said, "for the judiciary to set aside Michigan laws that commit this policy determination to the voters."
There is no mention of a moral imperative in those words or acknowledgement that the U.S. Constitution is the supreme law of the land. Kennedy seemed to exclude there being, anywhere, a legal authority that might prohibit voters from deciding policy issues with profound "equal protection" constitutional issues by a majority at the ballot box.
A divided Supreme Court majority tells us the Constitution "permits but does not require race-conscious admissions" for diversity. So, voters may finger a single means for achieving diversity —race — and ban it. And that singling out in no way violates a person's equal protection under the Constitution?
I can't buy that.
President Lincoln pointed out that, except for Texas (and later Hawaii), no state entered the union as a sovereign power — that is, "a community without a political superior." "Even Texas," Lincoln noted, "gave up (its sovereignty) on coming into the Union, by which act she acknowledged the Constitution of the United States ... to be for her the supreme law of the land." How can Michigan voters be allowed to ignore the Constitution's Equal Protection Clause?
In a dissent delivered partially from the bench (an unusual occurrence), Justice Sonia Sotomayor said a ban that prohibits the consideration of race violates that very thing: the Constitution's Equal Protection Clause of the Fourteenth Amendment.
Sotomayor said, "As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society." Justice Sotomayor gave a short history of what it took to achieve voting equality.
The Fifteenth Amendment, guaranteeing the right to vote, was passed in 1870. But it wasn't until 1965, with the passage of the Equal Rights Act, that African-Americans and other minorities achieved full equality in accessing the voting booth. "(To) know the history of our nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process," she said.
Justice Sotomayor also pointed out the sheer irrationality of the decision. Under Michigan's new law, a college may consider if a person is an athlete or has a relative who attended or if she is from an underrepresented area of the state. But in Michigan, they are prohibited to seek diversity by race.
Justice Sotomayor explains: "A white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy." But "a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had."
With this Supreme Court decision, we are making it more difficult for minority students to obtain a high-quality college education, compounding the problematic Supreme Court decisions of the 1990s, which made it more difficult for minority students to obtain a high-quality education in their K-12 years.
In the early 1990s, the Supreme Court made it easier for school systems to no longer have court supervision of the racial makeup of their schools, and since 2000, judges have ended court-enforced integration policies in hundreds of school districts across the South.
Even though academic research confirms that the achievement gap closes when black children have access to high-quality teachers, advanced courses, extracurricular endeavors and other resources that accompany typically white, middle class students, district after district has been allowed to gerrymander attendance zones and leave many minority students behind.
The Supreme Court, last week in particular and in general over the past generation, has steadily eroded the principles that the Brown v. Board was decided on. We should renew our commitment to those principles during the decision's 60th anniversary this year. Our national motto is "E Pluribus Unum," meaning "Out of many, one." We should not simultaneously be able to say to students just trying to get an education, "You're not part of the many we can consider."
Donna Brazile is a senior Democratic strategist, a political commentator and contributor to CNN and ABC News, and a contributing columnist to Ms. Magazine and O, the Oprah Magazine.