Make the Fuller Court Great Again

Excellent post about the civil rights legacy of Justice I Want Donald Trump To Pick My Successor and the four other members of the Roberts gang:

The Republican Party, Trump administration and Roberts Court playbook relies on Williams, not Korematsu.  In Korematsu, the Roosevelt administration explicitly declared that they had reasons to discriminate against Japanese-Americans.  The issue was when admitted racial discrimination was constitutional.  In Williams, state lawyers smirked as they told the Supreme Court that state laws were designed to prevent the ignorant and criminals from voting, not persons of color.  Trump lawyers wore the same smirk on their faces when they told the Supreme Court that travel ban was aimed at terrorists, not Muslims, that there was no discrimination going on.  The issue was when the court should find racial discrimination Chief Justice John Roberts and company blandly agreed the purpose of a law was what the lawyer said the purpose was, not the lawmaker.  Just as McKenna insisted that the court should ignore speeches by Knox and others stating that the purpose of voting restrictions was to restore white supremacy, so the conservative majority on the Supreme Court insisted that good justices should ignore Trump’s tweets stating that he had ordered a Muslim ban.  If the politicians were not pure, at least their texts were.

Roberts Court doctrine, if anything, is far friendlier to racial subterfuge than Fuller Court doctrine.  The Fuller Court in case after case simply declared that persons of color had not proved racial discrimination.  The Roberts Court adopts standards that make proving racial discrimination practically impossible.  Samuel Alito’s opinion in Abbott v. Perez (2018) insisted that because racism is so evil, courts must make every presumption that such luminaries as John Knox and his descendants have not engaged in racist actions, even when they tell us they are (or lower federal courts find clear evidence of discrimination).   White supremacists in the post-bellum South could only dream of such judicial solicitude

Korematsu and Williams frame Justice Anthony Kennedy’s legacy on the Supreme Court.  Kennedy loved liberty and, to a lesser extent, equality in the abstract, but not in their common manifestations.  He would strike down direct challenges to constitutional values, but throughout his tenure was uninterested in combatting efforts to circumvent the rights he celebrated in the abstract.  He might well have dissented in Korematsu, [if so, only because it was a Democratic President –ed.] but would have happily joined the majority opinion in Williams.  He, like the Chief Justice, believe that “the best way to stop discriminating is to stop calling discrimination “discrimination.””

This has been the cost common strategy for white supremacists after the Civil War — discriminate through formally race-neutral means, and then have the judiciary create subconstitutional rules that make even the most obvious and egregious racial discrimination impossible to prove. The Roberts Gang has mastered it, and while Kennedy leaving won’t make this significantly worse in the short term because he was terrible on these issues as on many others, it will further entrench it.

Of course, the Roberts Court is also the heir to the Melville Court when it comes to labor.