By
Melissa Harris Perry
updated 6/19/2013 6:19:15 AM ET 2013-06-19T10:19:15

With two weeks left in the term, the Supreme Court is set to deliver a series of high profile rulings on civil right cases. Sunday's "Melissa Harris-Perry" dove into what might happen if the Court reversed several of its own historic civil rights gains.

With two weeks left in the term, the Supreme Court is set to deliver a series of high profile rulings on civil right cases. As early as Monday, the Court could hand down its decision in Shelby County v. Holder, a case that challenges Section 5 of the 1965 Voting Rights Act. Section 5 mandates that nine states and 56 additional counties receive preclearance by the Department of Justice before making any changes to voting laws which might discriminate against minorities..

Seven years ago Congress overwhelmingly reauthorized Section 5 for another 25 years, affirming that the law still plays a critical role in ensuring fair and equal voting rights. Yet, opponents of Section 5 claim that race-based discrimination is no longer present to the extent that justifies such legal protection.

Melissa Harris-Perry guest host Ari Melber and his Sunday panel discussed the scope of structural racism today and whether it requires legal protection and remedy in the case of voting rights.

“Every single indicator, shows the continued existence of racism,” said Jelani Cobb, director of the Institute of African American Studies at the University of Connecticut.

Rather than overt interpersonal racism, this discrimination is more covert and structurally based, often occurring via policies with disparate impact.

Cobb pointed to two reports issued this week as evidence of continued race-based discrimination. The Equal Employment Opportunity Commission announced on Tuesday that it has filed suit against Dollar General and BMW for violating Title VII of the Civil Rights Act by basing employment policies on criminal background checks that have a disparate impact on African-Americans.

Also on Tuesday, the Department of Housing and Urban Development released its 2012 report “Housing Discrimination Against Racial and Ethnic Minorities.” The report found that, while blatant race-based housing discrimination is declining, unequal treatment continues to persist. In a paired-test study, HUD found that black, Asian and Hispanic renters and homebuyers are told about and shown fewer homes and apartments than white renters and home buyers.

Plaintiffs in Shelby v. Holder have argued that the South has changed to the extent that covered states no longer require preclearance. In oral arguments, Justice Sonia Sotomayor responded:

“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.” She later continued, “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”

Justice Sotomayor pointed to the high number of discriminatory laws that Section 5 has recently blocked. The Brennan Center for Justice found that between 1982 and 2006, more than 1,000 discriminatory proposals have been blocked by the DOJ under Section 5. A new report shows that 31 additional proposals have been blocked since 2006.

On Sunday’s panel, Harvard Law School Professor Lani Guinier questioned why the Supreme Court is in the position to make a judgment on the fate of Section Five when “elected officials in this country have made a decision” already by reauthorizing the law in 2006.

Cobb added that the job of the Supreme Court is to correct law, not legislators, stating it’s not the Court’s place to say, “[Congressmen] don’t have the temerity to vote this down, so we will correct it.”

New York University Law School professor Kenji Yoshino predicted that, of the civil rights cases being decided in the next two weeks, same-sex marriage will likely see a victory, but affirmative action and Section 5 of the Voting Rights Act are unlikely to be upheld.

See the rest of Sunday’s conversation on MHPshow.com, or at the #nerdland video hub.

Video: Core planks of civil rights law before Supreme Court

  1. Closed captioning of: Core planks of civil rights law before Supreme Court

    >>> this morning my question, when is it right to defend evil. plus republicans embracing civil rights as a branding strategy . and a fresh look at city dads on this father's day. first, our civil rights in danger at the supreme court next weekend and we have a nerdland panel to break down the struggle. good morning. i'm ari melber sitting in this weekend for melissa harris-perry. in modern america we have a story we tell ourselves about civil rights . it's about protest movements pushing the courts and courts pushing politicians even as they resisted to defend the status quo . today we want to explore a slightly different take on the story. this is a story where they are turning against social movements and a mantle of a color -blind society. it's a story where idealism of evers has been come opted by political gain by the same people seeking to strike down civil rights laws. starting monday the supreme court begins the end of this term. it will rule on two core terms of civil rights law , voting power and equal opportunity . understand why the court may be on the verge of unraveling its own precedent you have to look back on its history of combatting racism. 1950s socialism and campaign forced discrimination onto the national agenda. the country was bitterly divided and politicians in both parties treated apartheid as states rights , supreme court found consensus where the state could not. 1954 brown decision a unanimous court drafted separate by equal. two years later ended segregation of the bus system in montgomery, started by martin luther king in 1955 . turn to act two. congress stepped in and enacted crown jewels of civil rights era . congress passed civil rights in 1964 but civil rights were divisive. one out of four senators opposed the measure. then congress tackled segregated power instruct you're north dakotaing specific program to address sub jegation of rights in america. not only to suppress the vote like poll taxes , it erected future system to prevent future racist acts and tactics that didn't exist at the time. that's pretty important because the civil rights movement knew how creative. if poll taxes didn't work they changed district lines or registration rules. innovation of segregation. they required voting changes to be cleared in advance because certain states burned up their credibility and were not entitled to deference. then political parties began realigning around race, a story you probably know. segregation as democrats had a harder time on left and republicans became a wider party. it realigned in the last decades. something interesting began gop began rebranding its relationship with civil rights . this is where we think act three begins. republicans found a way to talk about a vision of racial progress, color -blindness. they talk about opportunity with handpicked conservative minorities on stage at their national conventions and in their presidential cabinets. even if that sounds like some posturing, the rebranding did yield a legislator shift. seven years ago, the last time vra authorized republicans overwhelmingly supported it and president bush supported it. lets look at that. this the same president that appointed alito and john roberts to the court before leaving office. that takes us to the final chapter here, act four, which i think starts next week. the core values of the civil rights movement have become so sacred very few national republicans openly challenge them today. the last republican president touted vra, as i mentioned, and last gop candidate mitt romney was the first in recent history to not run against affirmative action but simply run away from it. the party is proudly elevating minorities to key positions and talking about a new appeal to minorities. that's a testament to the power of civil rights victories. when authentic, i think it's an in tingt we should welcome. not nearly enough. each turn this branding of civil rights falters when it comes to universal action. president bush may factor in diversity when choosing his cabinet but he limited that practice to political appointees. when it came to public policy he never supported hiring programs for the rest of the nation, for the rest of us. he may have jumped at a chance to sign a voting rights bill but he's appointed the very people poised to unravel it next week. i think the story we tell ourselves about civil rights is more complicated than we realize and could all be about to change. to chart the road ahead a panel of civil rights experts at the table. nyu law professor, kenji josh ino and jelani cobb, director of institute of african- american studies in connecticut and author of "the substance and hope," the professor at law school , worked for department of justice and naacp legal defense fund where she headed their voting rights project. and director of constitutional government , arizona's public financing law. i want to start with you on this thesis. walk us through what the supreme court might do and why republicans might be of a single mind.

    >> a good question when you consider the re-enactment of voting rights act was 98-0 in terms of the members of the senate. so you see that the republicans are supporting at least on its face things like the voting rights act but in terms of enabling the voting rights act to work there's pushback and a case pending before supreme court where she wilby sknt, alabama is challenging one provision called section 5, which is the preclearance provision and which has enabled the justice department to intervene before damage is done as opposed to waiting for damage to be done and requiring independent plaintiffs to file a lawsuit in which they have to then subsidize costs involved. i'm saying on the one hand republicans politically claim to be in support of voting rights . but then in terms of supreme court and the fact there's a case pending before supreme court challenging the way in which the act applies to particular jurisdictions rather than to all of the states in the united states .

    >> so kenji is that encouraging or depressing?

    >> i would say it's a little bit depressing, because the encouraging piece of it is we have majorities that are actually doing the right thing. authorize marshall, how often do they reach out to protect a minority. what is a court doing striking this down in the name of color -blindness. the dark side of it with respect to color -blindness, she mentioned shelby county case and fisher case, a big affirmative action which will decided by june in the supreme court . what we see in affirmative is what a scholar called ideological drift, it was at one end of the spectrum, drifts over to the other side of the spectrum, as you were describing in your essay at the beginning. his example is color -blindness. color -blindness comes from dissent. it's seen as idea logically part of the left. now in more recent years it's drifted over in the court 's language to be a tool of the right where color -blindness has been a name where affirmative action programs, one after another, have been struck down. i think we'll see a wedge of affirmative action driven by the court in the next if you weeks.

    >> jelani, i want to take a look at something you were just mentioning, a shift in the voting patterns. if you look at the house gop as one measure of conservative views of this issue, what you see there up on the screen is that from 1965 , the percent of the caucus actually against voting rights for predominantly african-american interests was up around 39%, a significant share. as we mentioned down in 2006 it drops to 17%. yet jelani what kenji is saying here is it may drop but coming with a high price of color -blindness that won't advance measurable equality.

    >> it's important to remember in quincy versus ferguson the idea is not incompatible with color -blindness. in that decision it said there is no problem with segregation, save the problem that black people have with it, saying the whole idea of segregation being troubling and problematic may simply be all in your head. we've created a kind of color -blind society that recognizes color if we can say it in that weird contradictory way. when we look at that shift, it's the same thing that happens with overt racism . no one is going to say, okay, i believe in inferiority of this group.

    >> today.

    >> it's possible to net policies with that same disparate impact . people say, sure, we're in favor of voting rights . are you in favor of preclearance, the basis of vote rights established.

    >> what is disparate impact .

    >> we mean this saying we have a policy that allows -- that makes it more difficult for black people or communities historically discriminated against to elect a candidate of choice. this will replicate the old kind of status quo . that's what we mean by this, when we talk about disparate impact . on a more fundamental level, if we're looking at preclearance going what do people have about other aspects, the fact you have to have language ballots, have to have language ballots in election materials made available to people on a language of their choice, if that group of people represents a certain portion of the population. what happens there? what happens for voting rights for native americans . there's implications beyond what we're seeing now.

    >> i want to go to nick here, who is more in line with the conservatives but i'll let you explain your own position. i want to play for you something justice said in oral argument about what right and left agree on, it's good, people in both parties support voting rights act . we want to look at whether they mean it, it's good. justice scalia didn't think it was good. lets take a look at that.

    >> and this last north dakotament, not a single vote in the senate against it, and the house is pretty much the same.

    >> what's up with that.

    >> i think the problem is politicians don't have the courage, which i hope this court will, return to first principles, state racism will not end and will not succeed particularly now we're 50 years past water hosing and ban on sitting in the front of the bus. i mean, it really belittles the challenges the civil rights movement faced in the 1960s to 50 years later be insisting that conditions still warrant the extraordinary remedy the court deemed it to be in the 1960s . it doesn't warrant it. the civil rights movement should declare victory. we should recognize we have greater threats arising from the centralization of power in the federal government and we should also thank the supreme court on reinvigorating decentralization of power of returning to the states their primary role in regulating elections. with nsa surveillance, the greatest threat we all face too much power concentrating in washington and not enough power concentrating in states.

    >> you're talking about how we get to racial equality in the current context and what people in the civil rights movement think would work. a lot agree and some at this table. i want responses to that when we come back. also, how did justice sotomayer pick during oral arguments . she had some rebuttals of her own. we'll take a look at that next. [

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