Skip to main content
Part of complete coverage from

Chief justice out to end affirmative action

By Jeffrey Toobin, CNN Senior Legal Analyst
February 28, 2013 -- Updated 2015 GMT (0415 HKT)
STORY HIGHLIGHTS
  • Jeffrey Toobin: From arguments on Voting Rights Act, it's clear chief justice opposes it
  • In past rulings, John Roberts has voted down affirmative action policies, he says
  • Toobin: He thinks race equality has been won, remedies are reverse discrimination
  • Toobin: Voting Rights Act made the right to vote real for blacks, especially in the South

Editor's note: Jeffrey Toobin is a senior legal analyst for CNN and a staff writer at The New Yorker magazine, where he covers legal affairs. He is the author of "The Oath: The Obama White House and the Supreme Court."

(CNN) -- Every chief justice of the United States picks a signature issue. After Wednesday's argument on the future of the Voting Rights Act, it's clearer than ever that John Roberts has made his choice: to declare victory in the nation's fight against racial discrimination and then to disable the weapons with which that struggle was won.

Roberts' predecessors staked their ground in many ways. In the '50s and '60s, Earl Warren wanted to integrate the South. In the next decade, Warren Burger decided to fight crime. In the '80s and '90s, William Rehnquist sought to revive states' rights. Roberts came of age as a young lawyer in the Reagan administration, and there he discovered a cause that he has made his own: the color-blind Constitution.

In Roberts' first major decision as chief justice, he rejected the school integration plans of Seattle and Louisville. The authorities in those cities used several factors to determine where kids went to school: neighborhood, sibling attendance, but also racial diversity. Roberts' decision banned the schools from considering the race of the students in determining where they went to school. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," the chief justice wrote.

The voting rights martyr who divided America

Jeffrey Toobin
Jeffrey Toobin

Last October, the court heard a challenge to the race-conscious admissions policy at the University of Texas. No decision has yet been made in that case, but during the oral argument, the chief justice peppered the lawyer defending the university's plan with a series of sarcastic questions:

"Should someone who is one-quarter Hispanic check the Hispanic box or some different box?"

"What is the critical mass of African-Americans and Hispanics at the university that you are working toward?"

"So you, what, you conduct a survey and ask students if they feel racially isolated?"

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



As Roberts wrote in a different case, summing up his views: "It's a sordid business, this divvying us up by race."

All of that stands as background to the Voting Rights Act case, which was argued Wednesday. It is generally acknowledged that this law, passed in 1965, had a tremendous effect in finally making the right to vote real for African-Americans, especially in the South.

Under Section 5 of the act, nine Southern states (and a few other counties) must get the advance approval for all electoral changes from the Department of Justice in Washington. This process, known as pre-clearance, covers everything from drawing the lines of legislative districts to deciding the location of polling places.

How far has America come on race?

Several counties have challenged the law, saying, in effect, that it's obsolete. According to this view, the South has changed and now Section 5 represents a demeaning and unconstitutional burden on the covered jurisdictions.

At oral argument, Roberts seemed very receptive to this claim. He asked Donald Verrilli, the solicitor general who defended the law, "Is it the government's submission that the citizens in the South are more racist than citizens in the North?"

Verrilli said no, but he said Congress still had the right to draw distinctions among states.

Throughout the argument, Roberts had nothing but tough words for the lawyers defending the law and little to say to the challengers. A justice's questions at oral argument do not always indicate how he is going to vote, but Roberts' record on these racial issues is already well-established.

What does this mean for the country? It depends on whether you believe, like Roberts, that the work of the civil rights movement is done.

Race-conscious policies have transformed our schools and workplaces. Diversity is a value cherished by many. Likewise, the Voting Rights Act has given the South new and very different politics. But affirmative action, in Roberts' view, has become discrimination against whites.

The country may be about to discover how America looks in the way that the chief justice wants to reshape it.

Follow @CNNOpinion on Twitter

Join us at Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Jeffrey Toobin.

ADVERTISEMENT
Part of complete coverage on
December 27, 2014 -- Updated 0127 GMT (0927 HKT)
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
December 26, 2014 -- Updated 1617 GMT (0017 HKT)
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
December 26, 2014 -- Updated 1319 GMT (2119 HKT)
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
December 26, 2014 -- Updated 1505 GMT (2305 HKT)
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
December 26, 2014 -- Updated 1303 GMT (2103 HKT)
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
December 27, 2014 -- Updated 2327 GMT (0727 HKT)
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
December 25, 2014 -- Updated 0633 GMT (1433 HKT)
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
December 23, 2014 -- Updated 2312 GMT (0712 HKT)
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
December 24, 2014 -- Updated 1336 GMT (2136 HKT)
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
December 24, 2014 -- Updated 1914 GMT (0314 HKT)
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
December 23, 2014 -- Updated 2027 GMT (0427 HKT)
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
December 24, 2014 -- Updated 0335 GMT (1135 HKT)
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
December 23, 2014 -- Updated 1257 GMT (2057 HKT)
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
December 23, 2014 -- Updated 0429 GMT (1229 HKT)
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
December 23, 2014 -- Updated 2115 GMT (0515 HKT)
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
December 23, 2014 -- Updated 1811 GMT (0211 HKT)
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
December 22, 2014 -- Updated 1808 GMT (0208 HKT)
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
December 20, 2014 -- Updated 1853 GMT (0253 HKT)
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
December 20, 2014 -- Updated 2019 GMT (0419 HKT)
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
December 22, 2014 -- Updated 2239 GMT (0639 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT