Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this “search for the bigoted decisionmaker” developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision of Swann v. Charlotte-Mecklenburg Board of Education played in laying the foundations for this definition of unconstitutional discrimination. Swann is important because it vividly illustrates how the elected branches gave traction to the present definition of unconstitutional discrimination. The justices’ archives reveal the Swann Court’s uncertainty about focusing on the racial motives of present authorities as the basis for finding unconstitutional discrimination, and that a narrow majority preferred a draft of the opinion that eschewed this approach. Yet all justices acquiesced to Chief Justice Burger’s self-assigned opinion, which emphasized subjective racial motives as the core of unconstitutional discrimination, and as Justice Douglas described it, “wr[ote] President Nixon’s view . . . into the law.” The justices did so because they perceived unanimity as necessary for compliance in the face of both political branches objecting to judicial authority in the area of school desegregation. Swann demonstrates how the view of unconstitutional discrimination that centers on racial motives first gained traction out of deference to political branches calling for limits on judicial policymaking. This concern that animated defining unconstitutional discrimination in terms of racial motives—judges making social policy under the guise of constitutional remedies—does not apply in the current challenge to the Voting Rights Act, when the Court is asked to extend the racial-motives limitation, forged in deference to elected officials, to restrict the ways that elected officials have chosen to address discrimination.
The "Nixon Sabotage": The Political Origins of the Equal Protection Challenge to the Voting Rights Act,
B.C.J.L. & Soc. Just.