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The New Jim Crow: John Roberts Edition

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In the initial Gilded Age, the courts took the 14th Amendment, tore it up as it applied to African-Americans, and created entirely new and unintended meanings for it as it applied to corporations, starting the nation down the road that has lately led to Citizens United. It took the Sherman Anti-Trust Act, refused to apply it to corporations, and then applied it with great vigor to labor unions, who had nothing to do with why that law was passed.

It’s hardly surprising that the courts of the New Gilded Age are doing the same thing. Now, you’d like to think that Supreme Court justices would know both the history of American racism and how that racism continues to hurt people today, thus Michelle Alexander’s famous book, The New Jim Crow. But if you are John Roberts or Reasonable Moderate Sam Alito, the real new Jim Crow is any policy that impacts the Republican base in a way that doesn’t lead to exclusionary policies.

In a case with potentially profound implications, the U.S. Supreme Court’s conservative majority seemed ready to invalidate a provision of the Montana state constitution that bars aid to religious schools. A decision like that would work a sea change in constitutional law, significantly removing the longstanding high wall of separation between church and state.

The focal point of Wednesday’s argument was a ruling by the Montana Supreme Court that struck down a tax subsidy for both religious and nonreligious private schools. The Montana court said that the subsidy violated a state constitutional provision barring any state aid to religious schools, whether direct or indirect.

On the steps of the Supreme Court Wednesday, Kendra Espinoza, a divorced mother of two, explained why she is challenging that ruling.

“We are a Christian family and I want those values taught at school,” she said. “Our morals as a society come from the Bible. I feel we are being excluded simply because we are people of religious background.”

Chief Justice John Roberts and Justice Samuel Alito compared the exclusion of parochial schools from taxpayer-funded aid programs to unconstitutional discrimination based on race.

Now there’s a Jim Crow that the 5 conservatives on the Court will complain about! Ignoring actual discrimination? Please, that’s all about individual ambition and opportunity. Wouldn’t want to create charity or welfare after all! But supporting public schools, my God that’s basically worth than slavery and lynching combined!

The New Gilded Age indeed.

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