I was saddened to hear of the death of Judge Robert L. Carter yesterday, at the age of 94. The passing of this great generation of civil rights reformers (Fred Shuttlesworth and Derrick Bell are gone too) was of course inevitable — Dr. King would be in his 80s, if he were still with us. But studying their words and work, one is reminded of just how limited our visions of justice are these days.
I had the great privilege of spending a week with Carter a few years ago, as a participant in an NEH seminar on civil rights up at Harvard. He was sharp, passionate and inspiring, as he regaled us with story after story about his legal work with Thurgood Marshall and the NAACP Legal Defense Fund, and walked us through his informative memoir, “A Matter of Law.” If I remember correctly, I was a bit combative in some of our exchanges. Carter insisted on the transformative potential of school desegregation cases in the urban North, which he constantly pushed from within the NAACP in the mid/late 60s. I argued that the real issue was metropolitan housing segregation, and that a focus on the cities alone would achieve nothing more than tokenism, resistance, and white flight. He countered by emphasizing, rightly, the value of setting legal precedents. This was, after all, how the Brown decision was achieved in 1954: a long, slow walk through the court system. It was particularly important to get the courts to focus on impact, not intent, in the application of constitutional doctrine to segregation in the North. Once that was achieved, things could open up in much more transformative ways.
As background for my home ownership book, I’ve been doing some research on civil rights, the law and housing policy from the mid-60s to the mid-70s, and I’m in a much better position now to make sense of what Carter was trying to tell me — and of his legacy. During this all-too-brief period, there was a possibility (albeit a thin one) that the nation might finally confront the pattern of metropolitan inequality and segregation (by race and class) that had emerged in the wake of World War II. Real discussions of the necessity of ‘opening up the suburbs’ were taking place, not only within the civil rights and fair housing movements, but also within the Johnson administration, the courts, and even in the early days of Nixon’s first term (George Romney, Secretary of HUD, characterized suburbia as a ‘white noose’ around the neck of urban America). Most parties to this discussion recognized that both access to employment and to quality public education hinged on whether American metropolitan areas could be restructured. In other words, the future of the American opportunity structure was at stake — but time was of the essence. The nation was on the cusp of a massive expansion in suburban development (and of home ownership), but the shape which our social geography would take was still somewhat plastic. The intellectual, judicial and policy tools were there to trace direct connections between social geography and opportunity, and to expand civil rights jurisprudence beyond the limited individualistic ontology that had previously defined it.
And Carter was right there, at the forefront. Unfortunately for all of us, this brief window of opportunity to unwind metropolitan inequality had slammed shut by the mid-70s. There were small victories and experiments at the local and state level, here and there; the Mount Laurel decision, by the New Jersey Supreme Court in 1975, for example. But my argument about the ‘window’ is mostly aimed at the federal level.
Nixon gets some of the blame, as much because of his racial demagoguery as his urban and housing policies. His Supreme Court appointments get a lot of it, too. The San Antonio Independent School District v. Rodriguez (1973) and Milliken v. Bradley (1974) decisions carved a direct path to the urban school crisis we presently confront. Despite occasional exceptions at the state level, federal courts also continued to limit the reach of constitutional claims against exclusionary zoning, rendering fair housing law a dead letter in much of the country. Suburban white America captured the lion’s share of the responsibility, and retains it today. While the Republican Party has become the unapologetic champion of white suburban privilege (see this recent piece by Daniel Denvir, on urban issues in today’s GOP), the Democrats refuse to see what even George Romney (let alone Robert L. Carter) saw 40 years ago: that racial and class segregation is a recipe for disaster for the country.
Thanks, Mr. Carter, and rest in peace. That window is still closed, sadly. But it is surely cracked. And that, as Leonard Cohen once wrote, is how the light gets in.