Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction Review

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Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction ReviewShaw v. Reno is at the heart of Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, historian J. Morgan Kousser's closely reasoned critique of the Court's recent rulings on the constitutionality of "majority-minority" congressional districts-districts created for the purpose of ensuring adequate minority representation in the House of Representatives...
Colorblind Injustice is an angry book. Kousser is convinced that in a series of recent decisions, beginning with Shaw v. Reno, the Rehnquist Court has destroyed the hard-won gains that African Americans have made in political representation. Kousser considers those decisions to be bad law, bad history, and bad public policy, and he hopes "to set voting rights policy straight by getting its history right" (p. 2). In the pursuit of that ambition, he has written an exhaustive study of the recent history of voting rights, a study so carefully researched and intelligently reasoned that it will probably become the definitive work on this subject...
Kousser begins his analysis with a celebration of the achievements of the Second Reconstruction, a period when "the Court's willingness to protect the rights of minority citizens or let Congress do so, along with the stable majority of experienced and sympathetic members of Congress from 1954 to 1994, allowed judges, Congress, bureaucrats, and interest groups to improve federal protections [for minority rights] gradually and pragmatically" (p. 53). In Kousser's eyes, the Voting Rights Act of 1965 has been central to this process of minority protection, especially Section 5 of that act, which requires states that had prohibited black voting in the past to submit changes in electoral laws to the Justice Department for approval...
In Kousser's eyes, progress came to an end with the Supreme Court's ruling in Shaw v. Reno that two sprawling congressional districts, which were carefully drawn to ensure that they held black majorities, were in probable violation of the Fourteenth Amendment guarantee of equal protection of the law...Like Javert in Les Misérables, Kousser is relentless in the pursuit of his quarry. He devotes 250 pages of text to careful historical analyses of white politicians' successful attempts since passage of the Voting Rights Act of 1965 to reduce or deny minority representation in Los Angeles, Memphis, Georgia, North Carolina, and Texas. Kousser then spends the remaining 150 pages of his book explicating his thorough and scathing critique of the Rehnquist Court's decisions on the constitutionality of the majority-minority congressional districts that state legislatures created in response to Justice Department pressure. In Kousser's eyes, the Rehnquist Court-usually by five-to-four votes-has (1) ignored the relevant historical contexts of the cases it decided, (2) made bad law, and (3) defined central concepts in these cases in a manner contrary to their clear meaning. Shaw v. Reno illustrates all these problems...
Often Kousser's critique of the Rehnquist Court is so extreme and his use of language so hyperbolic that they weaken his credibility. For example, a reader of Colorblind Injustice, ignorant of the Court's history, might conclude that only the Rehnquist Court-and its racist predecessors-made decisions that were "abstract, formalistic, and factually incorrect" (p. 466) and substituted its own public-policy preferences for established judicial precedent...
When Kousser ends his book by comparing the Shaw cases with the Dred Scott decision and Plessy v. Ferguson, arguing that they "all buttressed a seemingly uncertain white supremacy" (p. 465), he goes too far. Dred Scott asserted that African Americans had no "rights which the white man was bound to respect" and that "the right of property in a slave is distinctly and expressly affirmed in the constitution." Plessy v. Ferguson upheld racial segregation and contained the cynical and racist observation that "if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Whatever the shortcomings of Shaw v. Reno, neither its reasoning nor its impact is comparable to those ugly, vicious, racist judgments...
Historically, African Americans and other minorities have made their greatest political gains through the formation of interracial coalitions. The abolition of slavery was a biracial effort, as were both Reconstructions. After World War II, African Americans in the industrial states of the North and West shrewdly exercised their voting rights in a manner that led to their courtship by politicians of both major political parties. Black votes often decided the outcome of state and national elections, as they did in the 1948 and 1960 presidential races. When the Civil Rights Act of 1964 was signed, civil rights leaders and congressional leaders of both parties were present in what was a truly biracial and bipartisan celebration.Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction OverviewChallenging recent trends both in historical scholarship and in Supreme Court decisions on civil rights, J. Morgan Kousser criticizes the Court's "postmodern equal protection" and demonstrates that legislative and judicial history still matter for public policy.
Offering an original interpretation of the failure of the First Reconstruction (after the Civil War) by comparing it with the relative success of the Second (after World War II), Kousser argues that institutions and institutional rules-not customs, ideas, attitudes, culture, or individual behavior-have been the primary forces shaping American race relations throughout the country's history. Using detailed case studies of redistricting decisions and the tailoring of electoral laws from Los Angeles to the Deep South, he documents how such rules were designed to discriminate against African Americans and Latinos.
Kousser contends that far from being colorblind, Shaw v. Reno (1993) and subsequent "racial gerrymandering" decisions of the Supreme Court are intensely color-conscious. Far from being conservative, he argues, the five majority justices and their academic supporters are unreconstructed radicals who twist history and ignore current realities. A more balanced view of that history, he insists, dictates a reversal of Shaw and a return to the promise of both Reconstructions.

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