Roberts Court Republicans: anti-discrimination measures discriminate against white people

Adam Serwer gets to the heart of the logic of the Roberts Court re-writing the Voting Rights Act into a statute that permits the consideration of race only if it is used to disenfranchise people of color:

As the historian Nancy MacLean wrote in Freedom Is Not Enough, by the 1970s, this segregationist had refashioned himself as an opponent of racial discrimination, a champion of color-blindness. Liberal egalitarians supporting race-conscious remedies, he argued, were “worse racists—much worse racists—than the old Southern bigots.” His transformation was so complete, he joked, that he was like the convert who “became more Catholic than the Pope.”

In fact, Kilpatrick’s conversion was no conversion at all. To understand it is to understand the Roberts Court’s decision today in Louisiana v. Callais. The decision purports to uphold Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting, but effectively nullifies it, ruling that a Louisiana redistricting map that created two majority-Black districts out of six, in a state whose population is one-third Black, was an “unconstitutional racial gerrymander.” The majority opinion uses procedural language to obscure what its rewriting of the VRA will allow lawmakers to do: engage in racial discrimination in drawing political districts as long as they say they are doing so for a partisan purpose rather than a racist one—as if the results would not be identical.

In states with large Black populations that remain under Republican control—half of the Black American population resides in the South—lawmakers will now be able to draw districts that dilute Black residents’ voting power. In his opinion for the right-wing majority, Justice Samuel Alito wrote that “in considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitutionally permissible criterion that States may rely on as desired.” The Court’s decision is consonant with the philosophy, articulated by Kilpatrick in his earlier days, that the state is oppressive when it interferes with the right to discriminate, and respects liberty when it allows discrimination. And the decision fits just as well with Kilpatrick’s later spin on that philosophy: Attempts to ban racial discrimination are themselves discriminatory—against white people.

What Kilpatrick wanted, and what the Roberts Court is making possible, is a country where white people can maintain their political dominance at the expense of Americans who are not white. The anticaste provisions of the Reconstruction amendments, intended by their authors to reverse the “horrid blasphemy” that America was a white man’s country, are being inverted to defend that dominance. This is not the color-blindness of Martin Luther King Jr., but what the scholar Ian Haney López has called “reactionary colorblindness,” the purpose of which is to maintain racial hierarchy through superficially neutral means. It takes the view that the Constitution’s “color-blindness” renders any attempt to remedy anti-Black racism unconstitutional, because by definition that would involve making racial distinctions. Similarly, the ruling in this case does not explicitly overturn the VRA’s ban on racial discrimination in voting so much as rewrite it to allow such discrimination.

And to state the obvious, this is not a new development. It was fairly early in Roberts’s tenure, after all, when he made clear that while Brown v, Board of Education could no longer be used to provide a remedy to de facto racial segregation, it could be used to prevent school boards from taking voluntary measures to segregate. John Roberts is squarely in the reactionary Virginia tradition of massive resistance, which has always had its superficially genteel wing.

The tragic irony here is that the framers of the 14th Amendment were generally aware that the precise wording of the Reconstruction Amendments was much less important than who was in charge of applying them, and they were terrified that Southern Democrats would take over the Supreme Court and nullify whatever they passed. But they weren’t cynical enough — for upwards of a century and a half Courts controlled by Republicans have been happy to do the job themselves. Callais is at least as bad as Plessy or the Civil Rights Cases or Cruikshank, and with appropriate adjustments for historical context I would argue that it’s worse than any of them.