Leo P. Martinez 

 Leo P. Martinez,  Toward a More Perfect Union?: The Danger of Conflating Progress and Equality, 44 Southwestern Law Review 727- 747 (2015)

[C]onditions . . . have dramatically improved. 

During the 2008 presidential campaign, a time that seems eons removed from the present, then candidate Barack Obama delivered a speech to address claims that his minister, the Reverend Jeremiah Wright, had made racially charged remarks. Obama, citing the preamble to the Constitution, "We the people, in order to form a more perfect union,"  noted the very real disconnect between our ideals as a nation and the reality of race in 21st Century America. 

Six years after this speech, we are more able to assess the disconnect between our ideals and reality. Two years ago, in the space of a week, the United States Supreme Court decided four cases, two of which are at apparent odds with the ideals expressed in the Constitution and two of which seem to affirm that we are indeed moving toward a more perfect union. 

In the first two cases, the Court suggested affirmative action in higher education will be deemed unconstitutional unless the school can prove that no other meaningful alternative would result in a diverse student body, requiring universities to present evidence to justify their policies, and the Court dismissed the salutary effect of section 4 of the Voting Rights Act, seemingly on the basis that discrimination in voting is a relic of the past. Last spring the United States Supreme Court decided Schuette v. Coal. to Defend Affirmative Action, and upheld the ability of the citizens of Michigan to prohibit racial preferences in University admissions.  Together, these three cases very well might have the effect of perpetuating, and potentially facilitating, inequality. In contrast, during last spring's term, the Court held the Defense of Marriage Act unconstitutional, as well as confirming the California Supreme Court's decision, finding California's Proposition 8- the ban on same-sex marriage - to be unconstitutional. 

In a very real way, these cases well represent the "two steps forward, one step back" approach that has characterized this nation's entire approach to racial and gender equality, prevalent since its founding. At bottom, despite steps taken to cure discrimination, racial and gender inequality persist.

The two categories of cases mentioned above highlight three significant problems. First, there is an apparent constitutional dilemma: the Court seems to draw a distinction between policies that try to fix old wrongs (affirmative action and Voting Rights Act) and those polices that actively discriminate (Prop 8 and DOMA) in the present.  This line of thinking leads to the inescapable conclusion that old wrongs are irrelevant, or at least do not need to be balanced anymore.  Implicit in this idea is that progress toward equality is equality. My own view is that improvement does not warrant complacency with the status quo, especially when equality is the objective.

Second, there is a suggestion in Fisher v. Texas that the corrective aspects of affirmative action as espoused in Grutter are "limited in time"  and hence have a shelf life. Though this was implicit in Brown v. Board of Education and its "all deliberate speed" language, the more recent cases seem to take a more nuanced, and limited, approach in this regard.  This too begs the question of whether improvement will serve to derail achieving true equality by eviscerating the instruments that made improvement possible.

Third, there is an almost maddening desire to conclude, without a shred of empirical support, that all is rosy when it comes to racial harmony and sexual equality in this country. The latter is exemplified in the Chief Justice's pronouncement in Shelby County v. Holder that "conditions . . . have dramatically improved" with respect to voting rights.  Indeed this has echoes of Justice Thomas' dissent in Fisher in which he cited Korematsu v. United States that "[p]ressing public necessity may some-times justify the existence of [racial discrimination]; racial antagonism never can."  This despite the unfounded basis for the public necessity in Korematsu. 

In this essay, I hope to make the point that our past is inextricably linked to our present and future. As I have taken pains to explain in other works,  I am not a close student of Constitutional law. At the same time, the observations I make are too plain to ignore and the claims that "things have changed dramatically" elevate a rose-tinted glasses view of the world over the reality that we occupy.  The conflation of progress and equality means that equality will be delayed to an intolerable extent. Our hopes and ideals do not and will not match reality if we continue on the path-the aspiration of a perfect union will never be realized.