Superb Adam Serwer essay on the Second Redemption Court:
The decision in Cruikshank set a pattern that would hold for decades. Despite being dominated by appointees from the party of abolition, the Court gave its constitutional blessing to the destruction of America’s short-lived attempt at racial equality piece by piece. By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.
The justices did not resurrect Dred Scott v. Sandford’s antebellum declaration that a black man had no rights that a white man was bound to respect. Rather, they carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.
The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
Roberts wrote that since the declaration itself was “facially neutral toward religion” and did not discriminate against all Muslims, it did not run afoul of the Constitution. In doing so, he embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.
“You have the president repeatedly saying this is a ban on Muslims, and the courts agreed with that, and he went back and rewrote it, and the courts seemed to say that was all he had to do to cover up his discrimination. After Reconstruction, the Court refused to see how their rulings encouraged the rise of white supremacists and inhibited the promise of the Fourteenth Amendment,” says Adam Winkler, a legal historian and professor at the UCLA School of Law. “There is in both instances a preference for legal formalities over how we know the law is being implemented on the ground.”
The Roberts Court is poised to shape American society in Trump’s image for decades to come. All three branches of the federal government are now committed to the Trump agenda: the restoration of America’s traditional racial, religious, and gender hierarchies; the enrichment of party patrons; the unencumbered pursuit of corporate profit; the impoverishment and disenfranchisement of the rival party’s constituencies; and the protection of the president and his allies from prosecution by any means available. Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.
The Roberts Court need not be any more consistent than the Redemption Court. Where federalism meets its goals, it will employ federalism. Where the supremacy of the federal government must be invoked, it will invoke the supremacy of the federal government. A Court that concludes that anti-Christian animus motivated the decision to uphold an antidiscrimination law protecting gay and lesbian couples but is deaf to the anti-Muslim statements of a president imposing a ban on Muslim travelers is not interested in consistency. A Court that says it is a violation of the First Amendment for California to make crisis pregnancy centers provide patrons with information about the availability of state abortion services but allows South Dakota to force doctors to read from an anti-abortion script is unconcerned with integrity. A Court that preaches fidelity to the Constitution but strikes down part of the Voting Rights Act without so much as naming what part of the founding document it violates regards honesty as a disposable virtue.
This analysis mistakes the Court for a fulcrum of change, rather than the Republican Party itself. The GOP’s partisan incentives have realigned around a man who believes black and Latino immigrants are from “shithole countries,” whose very name is a battle cry for white nationalists, and whose demonization of Muslims on the campaign trail ended in a grand victory on the Supreme Court. The Justices may not share Trump’s vision for America. But they appear unwilling to restrain him. Kennedy’s final opinion before retirement upheld Trump’s travel ban while pleading with Trump to “adhere to the Constitution and to its meaning and its promise.” It showed that, while there may be varying degrees of commitment to Trump’s ideological project within the Republican Party, conservative resistance is all but finished. Even those who might disagree with the president’s agenda are no longer willing to be significant obstacles to it.
But the whole thing should be read.