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Abstracted from Joan Tarpley, A Comment on Justice O'connor's Quest for Power and its Impact on African American Wealth , 53 South Carolina Law Review 117 - 149, 117-120, 133-136 (Fall 2001) (211 Footnotes omitted)
The distribution of wealth depends, not wholly, indeed, but largely, on a [society's] institutions; and the character of [a society's] institutions is determined, not by immutable economic laws, but by the values, preferences, interests and ideals which rule at any moment in a given society.
In general, African Americans did not experience the "wealth effect" connected with the booming American economy of the 1990s. This Essay addresses the asset poverty of blacks in America and how the Supreme Court's affirmative action decisions play a role in continuing that poverty. In particular, this Essay addresses how Justice Sandra Day O'Connor's affirmative action opinions further institutionalize the "whiteness as property" character of America's institutions. O'Connor is the subject of this Essay rather than one of the other conservatives on the Court because, as this Essay will demonstrate, she writes as a moderate voice so that she can be the Court's point person on some of the "hot button" issues. Nevertheless, O'Connor is not moderate on questions of race. She is deeply hostile to affirmative action. Her opinions are only facially moderate. Without exception, she takes the conservative position that affirmative action plans are unconstitutional. In fact, she has authored the conservative party line opinions on affirmative action, thereby creating blockades to use where none previously existed. O'Connor seeks power, stakes out her position, and proceeds to use whatever rule of law she needs in order to reach her desired result. She will use a rule although it is one she has previously disavowed, and if the rule does not exist, she creates it.
Justice Sandra Day O'Connor is an affirmative action, feminist movement appointee. Her position on the bench is the product of President Ronald Reagan's campaign promise to appoint a woman to the United States Supreme Court upon his election. Ironically, although O'Connor has arguably benefited from affirmative action, she has studiously worked at writing opinions that find affirmative action plans unconstitutional.
O'Connor writes about the "stigma" of being unqualified, one that minorities face because of affirmative action. She has also written about potential stigma as an outgrowth of affirmative action. Nevertheless, O'Connor did not refuse her appointment, nor has she relinquished her seat on the Court because of the potential stigma attached to her appointment as President Reagan's token female appointee.
Despite graduating third in her law school class from Stanford in 1952, O'Connor received no offers to work as a lawyer in the private sector. However, O'Connor found work as a law clerk and deputy county attorney in the San Mateo County attorney's office. Subsequent to this work, O'Connor worked in Frankfurt, West Germany as a civilian lawyer for the United States Army, while her husband served in the Judge Advocate General's Corps. Next, O'Connor returned to Phoenix where she opened her own law firm with another lawyer. In 1965, O'Connor became an assistant attorney general for Arizona. She was appointed to fill a vacancy in the Arizona state senate in 1969 and was subsequently elected to two full terms. O'Connor began her career on the bench in 1974 when she was elected to sit on the Maricopa County Superior Court. In 1979, she was appointed to the Arizona Court of Appeals. In 1981, O'Connor received her Supreme Court appointment. Despite O'Connor's experience, one can be certain that some well-deserving white male on President Reagan's short list of appointees did not get the job because of the discriminatory gender preference in favor of O'Connor.
Justice O'Connor is not a swing vote on the Court in matters of racial affirmative action plans as some believe. To the contrary, she is the chief architect in dismantling these plans. No less deleterious than Bull Connor's Alabama helmet police and savage dogs were to the 1960s Civil Rights Movement, O'Connor's opinions have dismantled affirmative action programs intended to provide equal economic opportunity to African Americans. Justice O'Connor invests heavily in economic turf protection on behalf of wealthy white Americans by engaging in a highly sophisticated form of war that, stripped of its black robes, suited attire, and United States Supreme Court chambers, is analogous to street gang warfare.
As a member of the United States Supreme Court, Justice O'Connor has engaged, and continues to engage, in an opportunistic enterprise. She takes every opportunity to add to existing institutionalized white preferences in wealth distribution. In the real world of the ongoing Confederacy, white skin carries entitlement to economic opportunity at the exclusion of African Americans. As chief architect for the disassembly of affirmative action plans, O'Connor has also carefully crafted obstacles to overcome in shepherding an affirmative action plan through her labyrinth. For example, her opinions craftily leave room for affirmative action optimists to believe that some plan might succeed. However, O'Connor always construes the law to disfavor the affirmative action plan because of unconstitutional racial preference.
Justice O'Connor's opinion in City of Richmond v. J.A. Croson Co. is the lead bulldozer in her dismantling of affirmative action jurisprudence. When Croson is read alongside her other opinions on affirmative action, she emerges as an elitist, a consummate politician, and a protector of the institutionalized "rights of whites." Other scholars have not been kind to O'Connor. This piece adds to the discussion concerning O'Connor's affirmative action decisions by supplying the perspective that these opinions were written to strengthen her position as the power vote on the Court--to become the Chief Justice in fact, if not in name.
Part II analyzes the affirmative action opinions that Justice O'Connor has authored, including majority, plurality, concurring, and dissenting opinions, and what I believe to be their impact on African American wealth. Part III discusses O'Connor's disagreements with Justice Antonin Scalia. These disagreements are important because Scalia's attacks call attention to O'Connor's political nature and note that O'Connor says whatever she needs to say in order to reach her desired result. Part III also places O'Connor's affirmative action opinions within the context of the Court and argues that O'Connor seeks to dominate the Court and grass-roots-level politics. Part IV concludes with some comments on the impact of O'Connor's opinions on African American wealth and the global economy.
(p. 121 - 132 omitted)
In order to understand the impact of Justice O'Connor's affirmative action opinions on African Americans, one must analyze the large economic disparity between blacks and whites. According to Oliver and Shapiro in Black Wealth/White Wealth, "[i]nherited wealth is a very special kind of money imbued with the shadows of race." Oliver and Shapiro argue that the absence of inherited wealth accounts for the great wealth disparity between blacks and whites. The authors claim that "[f]or the most part, the economic foundation of the black middle class lacks one of the pillars that provide stability and security to middle-class whites--assets." Furthermore, "[t]he black middle class position is precarious and fragile with insubstantial wealth resources." According to Oliver and Shapiro, this analysis means that "it is entirely premature to celebrate the rise of the black middle class. The glass is both half empty and half full, because the wealth data reveal the paradoxical situation in which blacks' wealth has grown while at the same time falling further behind that of whites."
O'Connor's opinions undermine generational wealth for African Americans. As black contractors, plumbers, and electricians have attempted, and presently attempt, to grow wealth in small businesses, O'Connor's opinions propose that racial inequality in the bidding process is simply a tough and punishing reality without a remedy. O'Connor's opinions disregard a history that created limited opportunities for African Americans.
Oliver and Shapiro come to a conclusion that others seem to agree with, but which the O'Connor opinions disavow:
Disparities in wealth between blacks and whites are not the product of haphazard events, inborn traits, isolated incidents or solely contemporary individual accomplishments. Rather, wealth inequality has been structured over many generations through the same systemic barriers that have hampered blacks throughout their history in American society: slavery, Jim Crow, so- called de jure discrimination, and institutionalized racism.
Oliver and Shapiro maintain that blacks are subject to asset deprivation, "both absolutely and in relation to whites. . . ." They claim that this deprivation reverberates throughout the economic circumstances of African Americans. In studying wealth as a social phenomenon, Oliver and Shapiro confirm our already known anecdotal information: "When the wealth pies are placed on the table, very few black households are served."
An "intergenerational transmission of inequality" rather than the wealth sustaining inheritance of assets, shows how "an oppressive racial legacy continues to shape American society through the reproduction of inequality generation after generation." A middle-class white child can look forward to inherited wealth, occupational upward mobility, and institutional racism skewed in his favor. Not so for the middle-class black child. The Oliver and Shapiro analysis sets forth three ways in which wealth is transmitted from one generation to another:
First, inequality is generated by the contemporary American social structure through severe distinctions in human capital, sociological, and labor market factors. We have seen that racially stratified experiences in schooling, jobs and family life result in resource circumstances unmitigatedly marked by race. . . .
The second layer of inequality . . . concerns institutional and policy factors, both public and private. In examining the practices surrounding home ownership . . . differential access to mortgage and housing markets and the racial valuation of neighborhoods result in enormous asset discrepancies. . . . Home ownership is without question the single most important institutionally sanctioned means by which assets are accumulated. At the same time, however, it is worth remembering that housing represents only one arena, albeit the most important one, of institutional discrimination.
The third layer of racial inequality in America is transmitted from generation to generation. We saw who inherited money both during the lifetime and after the death of a parent. Disparities emerged at three levels of inheritance: cultural capital, milestone events, and traditional bequests.
Arguing "that the racialization of the welfare state and institutional discrimination are fundamental reasons for the persistent wealth disparities" between blacks and whites, Oliver and Shapiro identify government policies as the culprit. Government policies have discriminated against blacks in their "quest for economic security" while simultaneously aiding and abetting whites in their expansion of wealth.
The following language from Black Wealth/White Wealth challenges the "free market theory of constitutional conservatism" discussed by West and written about in O'Connor's affirmative action decisions:
These [governmental] policies are not the result of the workings of the free market or the demands of modern industrial society; they are, rather, a function of the political power of elites. The powerful protect and extend their interests by way of discriminatory laws and social policies, while minorities unite to contest them. Black political mobilization has removed barriers to black economic security, but the process is uneven. As blacks take one step forward, new and more intransigent legislative or judicial decisions push them back two steps. . . . The inheritance of accumulated disadvantages over generations has, in many ways, shortchanged African Americans of the rather dramatic mobility gains they have achieved. While blacks have made stunning educational strides, entered middle-class occupations at an impressive rate, and moved into political positions in numbers unheard of a quarter of a century ago, they have been unable to surmount the historical obstacles that inhibit their accumulation of wealth. Still today, they bear the brunt of the sedimentation of racial inequality. . . . . Of course, this may simply be another way of saying that wealth is not only a function of achievement; rather, it can rise or fall in accordance with racially differential state policies . . . .
Justice O'Connor's opinions perpetuate a jurisprudence that continues to deprive blacks of a foundation upon which to build their wealth. There is no generational wealth among blacks because there is no societal or governmental foundation upon which blacks can build and transfer their wealth. Self- employed small business owners, such as the Minority Business Enterprise in Croson and the subcontractor in Adarand, are examples of blacks who could, with the opportunity to participate in the capitalist system, generate sufficient income to ultimately amass wealth.
The real tragedy perpetuated by institutional white supremacy and the O'Connor opinions does not stop at the boundary lines of the black ghetto. The dearth of a sufficiently educated, high-tech labor pool is a direct result of an expansive spectrum of the population, namely blacks and other poor Americans, receiving minimal education. If competition makes the product better, greater opportunity to compete as the contractor, rather than as only the laborer, would be beneficial to the entire country, not just blacks. There is an economic disservice done to the United States economy when only a few sit down at the competitive table. Wake up conservative constitutionalists, the wealthier the population is overall, the more likely our country is to have a vast, better educated, high-tech labor pool. America can hire its own. Furthermore, hiring through an affirmative action plan is far more liberating than depending on immigrant labor.
As we move away from the industrial age and into the information age, "whiteness as property" is too expensive to maintain. More efficient countries that direct human energy to the highest possible level of capability will surpass the United States because some in this country have a collective belief in, and insistence on, white preference. At best, O'Connor's jurisprudence is too short-sighted, too "narrowly tailored," and too "unduly burden[some]" for a country struggling to maintain global economic dominance. Opinions that are hostile to affirmative action, and thus legitimize the hostility in the continuing Confederacy, delay some of America's best and brightest in getting to the tables of negotiation and harvest. These same opinions retard this country's productivity potential.
Justice O'Connor's opinions showcase her as an elitist as well as a politician. Elitism requires scarcity. When too many African Americans are included in the capitalist market place, the scarcity that effectuates elitism disappears. Most elitists do not want to become commoners. In Adarand, Justice O'Connor devotes significant space to addressing the dissenting opinion of Justice Stevens. She also addresses the overruling of Metro Broadcasting in her discussion of stare decisis. Having taken her stance and written the scrutiny test to be applied to future affirmative action plans, O'Connor promotes the status quo elitism. Ironically O'Connor, the first woman appointed to the United States Supreme Court, took her seat and began eviscerating the concept of affirmative action that got her there. By handling discriminatory exclusion on an individual, case-by-case basis, O'Connor can continue to delay the economic rise of African Americans through the beginning of the twenty-first century. (p. 137 to 149 omitted)