As the debate begins over the confirmation of Clarence Thomas as a justice of the Supreme Court, most of the attention focuses on the question of whether he would vote to overrule Roe vs. Wade, the 1973 decision which extended an unlimited right of a woman to obtain an abortion in early pregnancy.
But a question with far larger implications is: Would he vote to overrule the case of United Steelworkers of America vs. Weber?
The Weber case is not so well known as the contentious Roe case, but overruling it could well become the final decisive event in turning around the civil rights movement of the 1960s.
To place the case in historical perspective, the Civil Rights Act of 1964 was proposed by a liberal Democratic president, Lyndon Johnson, and enacted by a Democratic-controlled Congress over the considerable opposition of Southern segregationists, such as George Wallace, and traditional conservatives, such as Barry Goldwater and Ronald Reagan. Its most meaningful provision was to outlaw discrimination on the basis of race (and, almost as an afterthought, of gender, as well) in hiring practices.
In its first years the act was grudgingly complied with as employers hired token numbers of minorities and women in their work forces. But it soon became apparent that the absence of discrimination alone would not be sufficient to overcome centuries of the American-style apartheid that had made it virtually impossible for racial minorities to compete on an equal footing.
To overcome this prior discrimination, the concept of "affirmative action" slowly evolved -- with judicial blessing and political implementation.
In 1974 the United Steelworkers of America and Kaiser Aluminum Corp. negotiated an agreement on an affirmative-action plan to hasten integration of the work force at a Kaiser plant in Louisiana. At that time, blacks constituted just 2 percent of the employees. Under the terms of the agreement, equal numbers of blacks and whites would be brought into a company training program until blacks in the plant work force approximated the region's overall black population, which was 39 percent.
Upon being denied admission to the training program, a white male named Brian F. Weber brought a suit claiming the agreement violated the 1964 Civil Rights Act by discriminating against whites. The federal courts in Louisiana agreed with Mr. Weber and ordered the company to abandon the agreement and take trainees exclusively on the basis of merit, without regard to racial balance.
The case was appealed to the Supreme Court, which in 1979 reversed the lower courts and held that such private affirmative action programs were entirely consistent with the purposes of the Civil Rights Act.
The court's vote in the Weber case was 5 to 2, with two justices abstaining for unspecified reasons. Since that time, the makeup of the Supreme Court has changed dramatically. The author of the Weber decision, Justice William F. Brennan, has left the court. So have two others who joined in the majority opinion, Justices Potter Stewart and Thurgood Marshall. One of the two dissenting justices, William F. Rehnquist, has been elevated to chief justice. Only one of the abstaining justices, John Paul Stevens, remains on the court.
And the philosophy of the court has changed as dramatically as the personnel. If recent decisions are any guide, if a Weber-style case were brought today, the justices most likely would reverse the 1979 decision and hold that private affirmative-action plans which contained numerical hiring goals, even for purposes of rectifying past discrimination, would be illegal under the 1964 Civil Rights Act.
And in light of Clarence Thomas' oft-stated aversion to affirmative action, his presence on the court would significantly increase the likelihood that the Weber decision would be reversed.
In writing the Weber decision 12 years ago, Justice Brennan declared: "It would be ironic indeed if a law triggered by the nation's concern over centuries of racial injustice, and intended to improve the lot of those who had been excluded from the American dream for so long, constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy."
Indeed it would. And it would be doubly ironic if the decision which produced that result turned out to be made by a black man who very likely would still be laboring in obscurity in a segregated South were it not for the civil rights revolution -- and for the court which gave it so much of its original hope and impetus.
Ray Jenkins is editor of the editorial pages of The Evening Sun.