To secure and protect rights belonging to them as freemen and citizens, nothing more

Pema Levy explains in an essential piece how the logic, such as it is, of Callais replicates that if two of the most infamous decisions in the Supreme Court’s largely dismal history. First, Plessy:

There are obvious echoes between Louisiana v. Callais, in which Justice Samuel Alito’s majority opinion finished off the VRA, and the notorious Plessy v. Ferguson decision, in which the court blessed Jim Crow. The Roberts court is in many respects a neoconfederate court, and it repeatedly applies the tactics and ideas of the 1880s and 1890s court, whose members likewise could not abide a robust vision of equality.

In the 1896 case, the Supreme Court ruled that a Louisiana law separating white and Black rail passengers was constitutional, affirming the principle of separate-but-equal. Plessy would eventually be overruled by Brown v. Board of Education and other 1950s cases that found separate-but-equal to be inherently unequal. Whereas the court, and the country, came to understand that separate was not equal, the Plessy majority found the railcar segregation mandate to be a race-neutral law that applied fairly to both white and Black people. Plessy rejected the “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority,” as Justice Henry Brown wrote for the 7-1 majority. “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

With these words, the majority blinded itself to the reality that, in a white supremacist society, separation would obviously be unequal, and confer a badge of inferiority upon the people forcibly segregated. Justice John Marshall Harlan, the lone dissenter, pointed out the fallacy of assuming Louisiana’s law was innocent. “The real meaning of such legislation” is that the “colored citizens are so inferior and degraded that they cannot be allowed to sit in the public coaches occupied by white citizens,” Harlan wrote in his famous dissent. Though this was patently clear, the majority would not admit it.

Instead, the Plessy majority somehow ascribed reasonable motives to the rail car law, finding them in line with the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order.” Further, the opinion noted the court must be deferential to the legislature’s reasons for passing the law.

[…]

Like the Plessy court, the Roberts Court in Callais creates a list of kosher, race-neutral criteria that can legally animate new political maps and must be left to the state’s discretion. The VRA “does not intrude on States’ prerogative to draw districts based on nonracial factors” including “traditional districting factors such as ‘compactness, contiguity,’ ‘maintaining the integrity of political subdivisions, preserving the core of existing districts,’ and protecting incumbents,” Alito wrote in Callais. To this list he added, crucially, partisan motivations: “In considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim.”

Just as Plessy denied the discriminatory reality of segregation and instead found it to be a reasonable policy, Callais ignores the inseparability of race and party affiliation, asserting that partisan gerrymandering is race-neutral when it is demonstrably not. As Jamal Greene of Columbia Law School says, there’s a “kind of narrow thinking that doesn’t notice obvious social context” in both decisions.

And second, the Civil Rights Cases:

Plessy also isn’t the only shameful chapter in Supreme Court history that Callais mimics. To Greene, the more apt comparison is actually to the Civil Rights Cases of 1883, in which the Supreme Court struck down the Civil Rights Act of 1875, which prohibited barring Black people from such places as hotels, railroads, and theaters. But the Supreme Court—with Harlan again alone in dissent—ruled that the 13th and 14th Amendments were too limited to create a right for Black people to enter these spaces. 

To critics who see the current Supreme Court draining Congress of its authority, Callais is a banner example. Congress passed the VRA under its 15th Amendment authority to remedy discrimination in voting after activists marched and died to show the nation the brutal racism they were up against. When the Supreme Court tried to impose an intent test onto the VRA in a 1980 decision, Congress responded by amending the law to mandate an effects test. (Notably, Roberts fought against the effects test from his then-perch as a Justice Department lawyer.) Congress reauthorized this version of the VRA as recently as 2006, which was signed by George W. Bush. In response to this popular legislation, the Supreme Court stepped in with a judicial veto.

“It’s just a hyper judicial supremacist intervention,” says Greene, hearkening back to “the worst historical example” of judicial supremacy, the Civil Rights Cases. In the 1870s, Greene explains, opening public accommodations to Black people is “a major, major demand of Black Americans,” and one that is then “favored by large majorities in both houses of Congress, is favored by President Grant, is understood by everyone at the time to be necessary to equal citizenship for Black Americans.” Into this consensus rides the court with its Civil Rights Cases decision to strike down Congress’ project with an “egregious power grab.” (Not for nothing, the Roberts Court has also chipped away at the 1964 Civil Rights Act’s requirement that private businesses not discriminate.)

The Roberts Court’s proclivities eerily echo the Civil Rights Cases in other ways, too. In Callais and other decisions eroding the VRA and affirmative action, various contemporary conservative justices have opined that “things have changed dramatically” and that race-conscious laws cannot “extend indefinitely into the future.” (In Roberts’ first decision attacking the VRA, in 2013, he not only declared that racism was sufficiently over but boldly lifted an argument—without attribution—from the infamous Dred Scott decision.) In 1883, the high court similarly held it had simply had enough with civil rights laws and they couldn’t possibly go on forever. “When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws,” their ruling in the Civil Rights Cases declared. 

Harlan’s response applies as much to that decision as to Callais: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” 

There’s more detail here and it’s all worth reading.

There are, however, a couple of important differences. First of all, Callais is, considering consequences as well as the internal logic of the opinions, even worse than the cases from the 19th century anticanon. Plessy was monument to bad faith and sophistry, but even had the case been decided correctly by our lights it would have done little to change the facts on the ground on its time — state legislation was not the primary vehicle for enforcing segregation, and the federal government in 1896 had neither the capacity nor the will to enforce a desegregation order. Similarly, the Civil Rights Cases involved legislation passed by a lame duck Congress at the sunset of Reconstruction — had the Supreme Court not struck it down the Civil Rights Act of 1875 would still have fallen into longstanding or permanent decrepitude, like the other civil rights legislation passed during Reconstruction or Section 2 of the 14th Amendment (which orders Congress to take representation away from states that disenfranchise eligible adult voters and was never enforced.) Callais, conversely, involves civil rights legislation that was extremely effective, and as the mad disenfranchisement dash that immediately succeeded it still mattered even as previously reduced by the Roberts Court. Plessy was also overdetermined, representing the overwhelming consensus of national political elites, while Callais is the direct product of the election of a president not chosen by even the plurality of the public.

There is another way in which the Roberts Court’s voting rights jurisprudence is even worse — its most consequential voting rights decisions have been statutory rather than constitutional opinions, and while in theory statutory decisions are easier for Congress to respond to in practice it further restricts the potential scope of any congressional response. But I’ll leave elaboration to a follow-up post in which I explain why even very strong legal realists should find Callais particularly objectionable.