The story told by John E, Nowak is about how the Justices of the Supreme Court have used their power to either protect or harm the interests of racial minorities during the past sixty years.
Because the events leading to the Supreme Court’s initial concern for protecting racial minorities from political oppression have been examined by others,’ I will focus on the decline of Supreme Court concern for racial minorities between 1973 and 1993.
Nowak’s story according to him, is really about how fifteen people used the nine voting positions on the Court. Those people are Chief Justices Burger and Rehnquist, and Justices Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, and Thomas
The Supreme Court’s approach to civil rights issues of importance to racial minorities has undergone dramatic shifts during this century. The attitudes and rulings of the Justices concerning civil rights issues can be divided into six time periods.
First, in the pre-New Deal era, the Court did virtually nothing to protect racial minorities from discrimination and oppression in our economic and political system.
Second, from the late 1930s through the early 1950s, the Justices slowly began to protect racial minorities with incremental shifts in the Court’s rulings concerning the meaning of equal protection and the scope of congressional power.
Third, in the “first Warren Court,” from 1954 to the early 1960s (while Earl Warren was Chief Justice), the Court made dramatic statements about the principle of racial equality but proceeded cautiously, as it faced a society unwilling to accept a more liberal view of civil rights.
Fourth, in the “second Warren Court,” from the early 1960s to the early 1970s (during the first years when Warren Burger was Chief Justice), the Court was an active leader in the protection of civil rights through its rulings concerning equal protection and its expansive reading of federal civil rights statutes.
Fifth, from the mid-1970s through the mid-1980s the Court seemed to vacillate in its rulings regarding civil rights issues. Finally, since the late 1980s, the Supreme Court seems to have turned against racial minorities, as it has narrowed earlier rulings concerning the Equal Protection Clause and restricted the efforts of legislatures to help racial minorities.
The Warren Court also gave an expansive reading to Congress’ power under section 2 of the Thirteenth Amendment and revived some Reconstruction Era civil rights statutes.
A provision of the 1866 Civil Rights Act, now codified as 42 U.S.C. § 1982, guarantees the same rights to each person “as [are] enjoyed by white citizens [of the state, territory, or locality] to inherit, purchase, lease, sell, hold, and convey real and personal property.”‘ For a century, this statute did little to protect the interests of racial minorities.
Finally, in Jones v. Alfred H. Mayer Co.,85 the Court found that the statute was a proper exercise of Congress’ power under section 2 of the Thirteenth Amendment, and that it made illegal the actions of builders and realtors in refusing to sell or lease property to racial minorities.86
The Court endorsed the view that Congress, under the powers granted to it by section 2 of the Thirteenth Amendment, could prohibit racial discrimination that the Justices might not independently believe constituted an incident of slavery that was proscribed by section 1 of the Amendment.”
Congress could rationally conclude that racial discrimination in our society today might be one of the consequences of the fact that we were once a society that legalized slavery.88
The Court found that any restriction on the congressional authority to enforce this statute would mean that the Thirteenth Amendment promise that slavery had ended would be a “mere paper guarantee.” 9
In the next year, the Supreme Court found that section 1982 proscribed racial discrimination in rental properties and in transactions related to membership in a recreational facility.”