White Racist Rule

 Well, it happened again. I fell for the mirage of the "Grand Bargain." 

When I first heard that even a conservative appeals court with two Trump-appointed judges had struck down an Alabama voting map for intentionally discriminating against Black voters, I thought: ah, here's a perfect opportunity for the Roberts court to do the right thing. 

Sure, they ruled against the Voting Rights Act in Callais. But this Alabama map is an even more egregious case. So, the Roberts court can side with the 11th circuit and say: "this map goes too far. Even though we weakened a lot of the safeguards in the landmark 1965 act, there are still constitutional prohibitions on intentional voting discrimination," etc.

I said: that is the sort of compromise that would appeal to John Roberts. I said: John Roberts is an honorable man. Surely he will want to show that he is moderate and capable of landing in the middle. He won't want to go down in history as a mere partisan hack. 

I said: Indeed, the idea of ruling against voting rights in Louisiana but upholding it in Alabama seems like just the sort of half-baked muddle that would appeal to Roberts. It would split the baby in a way that would keep everyone guessing. And that—I thought—is just what he likes to do. 

And so, my guess was the court would astound everyone by ruling against Alabama. Surely, I thought, that's the Grand Bargain Roberts will pursue in order to ensure both sides get something they can go home with and claim as a victory. 

But no. By a 6-3 majority, the court's conservatives ruled in lockstep that, under their recent decision in Callais, Alabama's efforts to dilute Black voting power are just fine. 

As Justice Sotomayor pointed out in dissent, the Court didn't even acknowledge that the lower court's intentional discrimination finding is a matter of fact, and therefore subject to review only under a heightened "clear error" standard. She observes: the majority did not even state this standard of review, let alone apply it. 

Secondly, she observes, the Court addresses only its own new standard under the Voting Rights Act, without acknowledging that the constitution's equal protection clause still applies—and surely precludes intentional racial discrimination in voting, which is what the district court found in this case. 

Instead of grappling with any of these weighty issues, or splitting the baby in a way that surprised everyone, or applying some sophisticated analysis that distinguished the statutory from the constitutional standards, the conservative majority essentially just said: you lose under Callais. 

"Didn't you realize that our ruling in Callais now means that Black litigants seeking to vindicate their voting rights always lose now? No matter how much factual evidence they compile of intentional racial discrimination?"

No matter how many times it happens, I am still shocked. I still hold out hope for the "Grand Bargain." I still think: but Chief Justice Roberts is a good man who wants to preserve the integrity and reputation of the Court. He doesn't want to just be remembered as a shill for the political interests of the Republican party. 

I should have heeded William Hazlitt's observation of Lord Eldon—namely, that good nature only goes so far. 

"[T]here is a limit even to this extreme refinement and scrupulousness of the Chancellor [...] At the approach of the loadstone [of party interest], the needle trembles, and points to it. The air of a political question [...] is a thumping make-weight, where all is so nicely-balanced beforehand."

Indeed, this appears to be true for every Republican appointee on the bench. 

Barrett, Roberts, Kavanaugh, and Gorsuch all occasionally like to surprise us with an uncharacteristic ruling. There was Kavanaugh's recent pro-defendant vote in a capital case involving a Batson challenge, for instance (counterweighting his notorious ruling last year permitting racial profiling in immigration stops). 

But we see in these voting rights cases that when the political fortunes of the party that appointed them are directly on the line, in an election law case, all this "scrupulosity" and cleverness vanishes. The electoral issue seems to operate as a "thumping make-weight" that settles the issue. 

So, I guess there are no more voting rights protections in this country. And even a finding of intentional racial discrimination that a conservative appeals court and two Trump-appointed judges say crossed the line into an equal protection clause violation is not enough any more to challenge efforts to dilute Black voting power. 

Which means that we are headed for permanent white majoritarian one-party rule again in large parts of the country—just as in the days before the civil rights movement. 

And it's not just the Supreme Court that is reversing decades of racial progress.

We also have the Secretary of Defense seemingly blackballing candidates for promotion in the military just for being women or minorities. (Hegseth evidently longs for the days when the officer corps was a white supremacist institution, "a yearning nation's blue-eyed pride," as E.E. Cummings ironically put it in a poem.)

We have the Secretary of State openly defending the Trump administration's policies of favoring white Afrikaner refugees over non-white refugees by saying that the former category will "assimilate" better. 

And I'm sure some white Americans think they will benefit from these policies, which openly favor their racial group over others (in a way we have not seen practiced with such rank and blatant injustice at the federal level in a half-century or more). 

But they should heed James Russell Lowell's reminder: 

Laborin' man an' laborin' woman

      Hev one glory an' one shame,

    Ev'y thin' thet 's done inhuman

      Injers all on 'em the same.