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Volume 8 no. 2 COMMENTARY
In the 1994-1995 term, a conservative five-member majority came into its own, inflicting serious damage on civil rights remedies. A common tread runs through the Adarand (contracting), Jenkins (education) and Miller (voting) decision s: constitutional wrongs that are grievously racial must be addressed only by remedies that take little or no account of race.
There is scant evidence that the nation is becoming color-blind. Indeed it appears to be going in the opposite direction. And it hardly seems likely that the goal of color-blindness will be served by decisions that leave racial wrongs unredressed and ra cial wounds open.
In any event, the majority's excursions into legal theory ignore entirely the harm that curbs on remedies will do to aspiring minority entrepreneurs, children who may be consigned again to racially and economically isolated schools and citizens seeking a voice in the political process.
The only potentially consoling aspects of the three decisions are that in each, the majority's message is a bit blurry. In Adarand, Justice O'Connor tells us that strict scrutiny of set-aside programs is not necessarily "fatal in fact." In Jenkins, Chief Justice Rehnquist, an opponent of the principles of Brown v. Board of Education since the 1950s, suggests that government officials may still have to address racial disparities in educational outcomes if they are traceable to unlawful segregation. In voting, the Court takes new cases every term, presumably to clarify its opaque opinions.
Whether this means that one or more members of the majority has compunctions about repudiating the most honorable work the Court has done in this century-the opinions in Brown and its progeny giving content to the Thirteenth, Fourteenth, and Fiftee nth Amendments-is hard to tell. But one thing is clear: the Court is perilously close to the brink.
William L. TaylorSenior Editor
  
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