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
November 21, 2014 -- Updated 1925 GMT (0325 HKT)
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
November 21, 2014 -- Updated 1244 GMT (2044 HKT)
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
November 20, 2014 -- Updated 2329 GMT (0729 HKT)
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
November 21, 2014 -- Updated 0134 GMT (0934 HKT)
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
November 20, 2014 -- Updated 2012 GMT (0412 HKT)
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
November 21, 2014 -- Updated 0313 GMT (1113 HKT)
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
November 21, 2014 -- Updated 0121 GMT (0921 HKT)
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
November 20, 2014 -- Updated 2256 GMT (0656 HKT)
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
November 19, 2014 -- Updated 2011 GMT (0411 HKT)
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
November 19, 2014 -- Updated 1345 GMT (2145 HKT)
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
November 19, 2014 -- Updated 1319 GMT (2119 HKT)
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
November 19, 2014 -- Updated 1519 GMT (2319 HKT)
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
November 19, 2014 -- Updated 1759 GMT (0159 HKT)
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
November 18, 2014 -- Updated 0258 GMT (1058 HKT)
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
November 18, 2014 -- Updated 2141 GMT (0541 HKT)
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
November 17, 2014 -- Updated 1321 GMT (2121 HKT)
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
November 17, 2014 -- Updated 1216 GMT (2016 HKT)
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
November 17, 2014 -- Updated 0407 GMT (1207 HKT)
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT