For a conservative editor and columnist James Jackson Kilpatrickthe Supreme Court decision that outlawed school segregation was cruel. Brown v. Board of Education, wrote in the 1950sit was “an act of revolution by a judicial junta that seized power.” He warned in 1963 that passage of the Civil Rights Act of 1964 would destroy “the entire basis of individual liberty.” And in 1965 National Assessment cover story, argued that in order to “give Negroes the vote,” the Voting Rights Act would repeal the Constitution.
Kilpatrick made no secret of the basis of his belief: In an article inspired by the 1963 Birmingham Baptist Church bombing, called “The Hell He Is Equal,” he insisted that “the Negro race, as a race, is really an inferior race.”
As historian Nancy MacLean wrote in Freedom Is Not Enoughby the 1970s, this racist had reorganized as they will protest of racism, champion of color blindness. Liberal egalitarians who supported race-sensitive cures, he argued, were “worse racists—worse racists—than the great Southerners.” His transformation was so complete, he joked, that he was like a convert who “became more Catholic than the Pope.”
In fact, Kilpatrick’s conversion was not a conversion at all. To understand it is to understand the decision of the Roberts Court today in Louisiana vs. Callais. The decision seeks to uphold Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting, but overturns it outright, ruling that Louisiana’s redistricting map that created two of six black districts, in a state where the population is one-third black, was “unconstitutionally racially prejudicial.” The majority opinion uses procedural language to obscure what its rewrite of the VRA would allow lawmakers to do: engage in racial discrimination in drawing political districts as long as they say they are doing so for preferential rather than discriminatory purposes—as if the results would not be the same.
In states with large Black populations that remain under Republican control—half of Black Americans he lives in the South—legislators will now be able to draw districts that limit the voting power of Black residents. In his opinion for the right-wing majority, Justice Samuel Alito wrote that “in considering the constitutionality of a district plan, courts must treat racial advantage like any other non-racial objective: a constitutionally permissible criterion upon which the States may rely at will.” The Court’s decision is consistent with the philosophy, expressed by Kilpatrick in his early days, that the government is oppressive when it interferes with the right to discriminate, and respects freedom when it permits discrimination. And that decision is in line with Kilpatrick’s later turn to that philosophy: Attempts to outlaw racism are themselves racist—against white people.
What Kilpatrick wanted, and what the Roberts Court makes possible, is a country where white people can maintain their political dominance at the expense of non-white Americans. The anticaste provisions of the Construction amendment, intended by them writers turn “horrible blasphemy“that America was a white country, they are turned to defend the regime. This is not the color blindness of Martin Luther King Jr., but what the scholar Ian Haney López has called “reaction color blindness“its purpose is to maintain racial leadership by neutral means. It takes the view that the Constitution’s “race blindness” renders any attempt to deal with racial discrimination against Blacks unconstitutional, because by definition that would involve committing racial discrimination. Allowing that discrimination.
Iin 2022Louisiana lawmakers passed a plan to restrict Black voters to one out of six congressional districts (“packing” them into most districts and “splitting” the remaining Blacks into other districts to reduce their influence). These practices go back to Reconstruction, when blacks first won the vote and radical Democrats wanted limit or to destroy their political influence. Civil rights groups sued Louisiana over the map and won on the grounds that it violated the VRA’s requirement to ensure that minority voters have an equal opportunity to elect the candidate of their choice. Louisiana was ordered to create a new Negro district, which it did. But then Louisiana sued again, this time with a group arguing that the new map was unconstitutional because it divided voters by race. This is the case brought to the Supreme Court of the United States.
In his opinion, Alito said that “social changes have occurred throughout the country and especially in the South,” suggesting that racism is a thing of the past. (This ignores much contemporary evidence to the contrary—including the fact that the president appointed half of the Callis many have called Somali immigrants “garbage.”) Since the Roberts Court began striking down the VRA in 2013. Shelby County v. Holder to dominatethe gap between people of color has increased.
It’s true that—thanks in large part to the protections that the Roberts Court has careful breakdown-Americans experience less discrimination than they used to. But a glaring flaw in Alito’s logic was exposed when he defended the leader as a partisan and not a racist by saying that many black people support Democrats, “because race and politics are so intertwined.”
In other words: Discriminating against Black voters is okay because they vote for Democrats. Many Democrats in the 19th century, when Blacks overwhelmingly voted Republican, would enthusiastically agree with Alito’s assessment. But if you apply Alito’s logic to white radical Democrats, they weren’t racist either. They just, you know, wanted to win an election or something, and Black people were in the way. The fact that discriminating against Black voters would give Republicans an advantage today is not dismissive; it only creates discriminatory intent.
Drawing a separate map that disenfranchised Black voters, as the lower court had ordered, would be “unconstitutionally racially oppressive,” Alito concluded. Trying to disenfranchise black voters is not racist; preventing Louisiana from disenfranchising Black voters is racist.
Getting it wrong in perspective is one thing. But this decision ignores the wishes of Congress, which in its reauthorization of the Voting Rights Act of 1982 stated that voting provisions had a purpose. or effects to discriminate against minority voters was illegal. Alito seemed to oppose this entirely when he wrote that the VRA “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to give minority voters fewer opportunities because of their race.”
Congress expressly banned laws and policies that had discriminatory effects, not just those that were clearly discriminatory, because of the Supreme Court’s 1980 decision, City of Mobile v. Boldenwhich revealed that the VRA was allowing officers to waive discrimination as long as they were careful to do so.. John Roberts, then a young lawyer in the Reagan Justice Department, resist the changearguing that it would provide the basis for “the most intervention imaginable”—by which he meant the government’s ability to intervene in racism, not racism itself.
In his opposition CallisJustice Elena Kagan referred to the case, saying that the VRA was supposed to be a “corrective” to superficially racially neutral devices that actually “prevented Black citizens from voting or ensured that their votes would not be counted.” When the Court interpreted the statute “too narrowly—emphasizing that a person suing under Article 2 had to prove discriminatory intent—Congress amended the statute to focus only on the effects of discrimination.”
Congress specifically wanted to close the loophole that the Roberts Court has now opened to destroy the VRA almost entirely. The decision doesn’t just turn the clock back to 1980. It’s worse than that: Many Republican lawmakers may interpret the decision as permission to reduce the voting power of troubled minority voters. For all Alito’s moralizing about the danger of the VRA being “used cynically as a tool to advance self-interest,” that’s exactly what he and five other right-wing justices are doing. Shortly after the decision, Trump’s former campaign manager Brad Parscale he crowed on X that “if the states be disorderly, we may always see many healthy men in the Legislature.”
Although Alito worked to hide the breadth of his own views, Justice Clarence Thomas was more forthright in his concurrence. Thomas reiterated his view that the VRA’s districting provisions were “abhorrent” to the “colorless constitution.” An all-white Congress entering office on the success of “partisan” sabotage would not be anathema to this “colorless” Constitution.
What we can expect after this decision is for more Republican-controlled states to implement discriminatory maps and call them partisan in order to pass legislative debates. In practical terms, this would mean few non-white representatives in Congress. Disempowering minority voters may also allow the Republican Party to continue its path from ideological color blindness to more overt racism, safe in the notion that it will not have to respond to voters who oppose that racism because they are its targets. There is little risk in attacking people who do not have the power to remove you from office.
Alito wrote of the VRA being “perverted” for partisan purposes, but I can think of no greater perversion of the VRA than to conclude that it is acceptable for white people to try to disenfranchise Black voters for political gain. It defeats the entire purpose for which the VRA was passed, which was to end the deliberate and systematic disenfranchisement of Black people that was then prevalent throughout the United States, and to prevent such discrimination from ever occurring against anyone.
The Roberts Court creates a world where the federal government does not interfere with the right of white Americans to rule over those they consider inferior; as Kilpatrick once observed, that is the “whole basis” of their narrow vision of freedom. They can call this color blindness what they want, but we can see what it really is.
