The 'Nixon Sabotage': The Political Origins of the Equal Protection Challenge to the Voting Rights Act

Abstract:     
Critics challenge the Voting Rights Act on the grounds that the anti-discrimination law requires states to engage in unconstitutional discrimination. This conflict arises from the contemporary view that racial motivation (even benevolent) is the essence of constitutionally suspect discrimination. The Voting Rights Act is subject to constitutional challenge because states must modify their policies to mitigate racial exclusion, and this effectively makes race a factor in decisionmaking. This argument relies on the view that unconstitutional discrimination is any form of racial motivation (invidious, benign, or benevolent), rather than policies that systematically disadvantage members of one race. In this essay, I aim to shed light on the way that political pressure shaped the understanding that racial motivation is the cornerstone of unconstitutional discrimination. The conventional understanding among constitutional scholars is that Court narrowed unconstitutional discrimination to racial-motivation (“the search for the bigoted decisionmaker” ) in employment and housing discrimination decisions between 1976 and 1979. These accounts overlook how racial motivation was actually first emphasized earlier, in response to political resistance to court-ordered school desegregation, in the 1971 school desegregation decision of Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971). The story of the Swann opinion reveals that a majority of justices on the Court that first emphasized racial motives as the core of unconstitutional discrimination actually did not subscribe to this view; and that it was a compromise under pressure from Justice Burger controlling the opinion assignment, and President Nixon’s call to restrict “activist” judges issuing broad school integration orders. Swann suggests that the Court should consider adopting a more nuanced approach to the view that all racial motivation is unconstitutional discrimination, in particular, when it comes to striking down the way that Congress has chosen to define discrimination. Politicians first endorsed this view, contrary to a majority of Justices, in order to limit judicial activism in defining unconstitutional discrimination.

Number of Pages in PDF File: 20

Keywords: constitutional law, Civil Rights, antidiscrimination, presidential politics, Institutional Supreme Court

Accepted Paper Series