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Black America, some people said, was dying. And they wondered what they would hear in the souls of white folk when white America heard the news.

Part of the story was told in June 1995, by the Supreme Court. The session of the Court had not been convened explicitly or exclusively to determine the fate of black America. Still, it was clearly on the agenda, with no less than three major race-related disputes on the High Court's docket.

And what the Court had to say on such matters did matter. As the highest tribunal in the land, it possessed the power to shape the law, and, the power to shape the larger society. This last point was the focus of academic debate--some questioned the societal impact of the Court's decisions--but this much remained certain: the law would play some role in shaping the development of societal conventions, and on matters of law, the words of the Supreme Court tended to be the final ones.

More importantly, the Court helped establish the parameters of cultural discourse. It was a major participant in the national political dialogue, and its voice carried an authority not often accorded its elected counterparts. Ironically, the paradigms it helped shape were not only legal ones: some were epistemological, some quite political, some downright moral. In reinforcing popular attitudes and beliefs, or in challenging them through new perspectives and dissonant information, the Court helped establish a national mood. It confirmed or denied the citizenry's sense of what is real and what is right. Over time, it transformed their sense of both the possible and probable, and forever changed the way the people saw one another and saw themselves. Yes, the Court's words mattered.

And what the Justices had to say on this occasion, in the closing weeks of their judicial term, might have mattered more than usual. Their words were addressed to the most intractable of national problems: the enduring dilemma of racial inequality. For a waiting nation--for judges, lawyers, lawmakers and their constituents, for teachers and students, parents and children, for the American people of every station, and every hue-- the Court would do no less than newly define the meaning of racial equality. It would be a progress report of sorts: how equal was America? But more importantly, it would set the agenda for the millennium. In this struggle for racial equality, what could be achieved, and how? Whose struggle was it, and when could it end? There were nine of them, one was black and eight were white, and they would need to explain what their souls had to say when they pondered the fate of black America.

They had chosen three specific issues to address: the racial desegregation of America's public schools; the national government's use of preferences or presumptions to benefit racial minorities; and the explicit reliance on race in the creation of electoral districts as a device to ensure minority representation in the federal legislature.

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California Law Review





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