By Stacey Patton

Washington – I had a chance to steal a few moments with former NAACP Legal Defense and Educational Fund, Inc. (LDF) President and Director-counsel Theodore M. Shaw after the September 18 symposium on the Supreme Court’s case selection process held at the National Press Club in Washington, DC.

The last time I saw Shaw was over a year ago, when we played a few pickup games of basketball at a sprawling park in Warren, New Jersey.  That day, there was little serious conversation, other than the usual trash talk and bragging that comes with street ball.  Instead, we traded clutch jump shots, set illegal screens on each other, and grabbed each other’s jerseys.  I was mostly on the receiving end of one his massive elbow blows thrown in sometimes futile attempts to keep me from scoring.

Shaw said that he has pretty much retired from the sport, and from his most recent position as a law professor at Columbia University.  He still finds himself active in the civil rights world and quite passionate about issues pivoting around race.

This time around, we put all jokes aside and had a brief conversation about the current state of American race relations and how our highest court decides laws that impact African Americans and other minorities.  Shaw touched on the recent debacle involving Congressman Joe Wilson’s disrespectful outburst and President Obama’s choosing not to acknowledge the virulent racism directed toward him. He also shared some thoughts about the Supreme Court’s conservative justices, and what LDF and other civil rights advocates ought to be doing to challenge wrongs against African Americans and other minorities.

Q:  Since the election of President Obama, ‘post-racial’ has become a buzzword in our political and social lexicon.  How has this catchphrase impacted civil rights litigation and the way the Supreme Court decides to hear such cases?

A: The post-racial rhetoric has impacted the court’s thinking on what kinds of cases it will take.  It is difficult to say with absolute certainty what’s going on in the minds of the justices unless they articulate it themselves.  But we know that Justice Clarence Thomas, for example, very much wants us to be in a place where we are post-racial.  So do we.  But he wants us to be a post-racial society whether we are there or not.

The same is true of Chief Justice Roberts and Justice Samuel Alito.  Everybody wants to know where Justice Kennedy is.  He’s a key vote, but he’s very conservative.  He has some hesitation on some decisions because he understands that there are still structural inequities and discrimination in this society.  But the Court is extremely conservative and we can look at some of the opinions to see this but also that some of the justices want us to be there – a post-racial society.

Q: Are the kinds of civil rights cases brought before the Court changing?

A: Yes, they are. Those bringing civil rights claims before the court are using tactics from our playbook to reverse what we traditionally understand to be discrimination.  They understand our principles, have taken our playbook in effect, and flipped the script.  The effect is that the real issues of black and brown people are not heard.  Those of us who litigate civil rights cases are concerned about the way in which the court hears civil rights cases and if it will be fair. Civil rights as we know and support it are being attacked and the voices of people of color are not being heard.

Q: Are we going to continue to find ourselves seeing more cases of reverse discrimination?

A: I think we are.  The election of Obama, as wonderful of a milestone that it has been, convinces more people that race is absolutely not an issue no matter what.  Some people argue that race is not an issue even though there is this undercurrent at best, and a loud discourse about race.  This is an opportunity for people to deny what they’ve always wanted to deny so badly which is the significance of race.

Q: What about those who point to Obama’s election and say that we’ve come a long way?

A: Now clearly, Obama’s election means something.  But all you have to do is look at the election statistics and see how they break down and what vote he got in the south and elsewhere and listen to the rhetoric of opposition now to the President’s policies.  Some people try to defend Congressman Joe Wilson’s outburst and say that it had nothing to do with race. I don’t know why they would work so hard to rehabilitate somebody who has been the defender of the Confederate flag, denier that Strom Thurmond fathered a black daughter.  Why work so hard to rehabilitate him when that kind of disrespect has only been directed at a black president?  Most blacks tend to read that and say that race is at play there.  And we’re not all crazy.

Q: How do those in the business of civil rights capitalize off this very tense moment that is charged with race?

A: LDF has a continuing public education role.  We have to explain to people why race is still significant, even while we recognize the profound significance of the moment which was when Obama was elected president. We have to acknowledge that we are not where we were 50 years ago or 10 years ago or five years ago or even two years ago for that matter.

If we don’t acknowledge that, then we won’t have credibility with people.  At the same time, we have to explain to people through public education and with the facts why we have to continue doing the work we do and it’s not all done yet.  The fact is that our president is hamstrung about talking about race.  He gave his Philadelphia speech during his campaign. But look at what happened with the [Professor Henry Louis] Skip Gates affair. It doesn’t help us in our work and our mission that he can’t talk about race. But we have to try to make people understand why he can’t carry that water and why he’s doing it and what the realities are. That’s part of LDF’s work.

Stacey Patton is a Senior Writer and Editor for the NAACP Legal Defense and Educational Fund.