Justice is Supposed to Be Blind—Judges Are Not

In his majority opinion in Alexander v South Carolina NAACP, Samuel Alito, whose new motto is “I’ll fly any flag I damn well please—do something about it,” reversed a lower court and ruled that South Carolina’s redistricting, in which thousands of Black voters were effectively disenfranchised, was not an unconstitutional racial gerrymander.  Ignoring the obvious, he wrote in the 6-3 decision, “The circumstantial evidence falls far short of showing that race, not partisan preferences, drove the districting process, and none of the expert reports offered by the Challengers provides any significant support for their position.”

“Partisan preferences” means political gerrymandering. Although, taking a page from George Orwell, it makes some votes “more equal than others,” the practice was deemed constitutional in 2019 by five of the same justices.  (Amy Coney Barrett was not yet on the Court.)

In Rucho v. Common Cause, Chief Justice Roberts wrote “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.  Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Yes, there is a grant of authority in the Constitution.  It is called “equal protection of the laws,” but Roberts’s copy of the Constitution obviously has the 14^th Amendment scratched out.  In addition, one is left to wonder if he would have been so ecumenical if it were Democrats gaining the advantage instead of the conservatives who now dominate the gerrymandering landscape.

Of the South Carolina decision, law professor Steve Vladeck observed, “Here, the conservative justices effectively substituted their judgment about what actually happened for that of the district court—which could have consequences far beyond the specific context of racial gerrymandering cases.”

If history is any judge, Professor Vladek is correct, because almost the exact scenario played out more than a century ago and led to one of the darkest chapters in American history.

In 1890, after a series of Supreme Court decisions had paved the way for the return of white rule in the South, Mississippi became the first state to rewrite its constitution.  The purpose was clear.

As James K. Vardaman, later elected as both governor and United States senator, observed, “There is no use to equivocate or lie about the matter.  Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics…let the world know it just as it is.”

The world might have known it just as it was, but the Supreme Court did not.  In 1898, although virtually none of the state’s 907,000 Black residents remained eligible to vote, Justice Joseph McKenna in Williams v Mississippi wrote that the Mississippi constitution did not “on [its] face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them.”  In doing so, although state officials had publicly announced their intention to disenfranchise them, the Court ruled that the burden was on Black voters to prove, on a case-by-case basis, that registrars had rejected their applications solely because of race.  

It got worse.  In 1903, the Alabama constitution, just as obvious in its intent, was challenged in the Supreme Court.  There, in Giles v Harris, the Court, in a grotesque opinion written by newly appointed Justice Oliver Wendell Holmes, Jr. declined to void that document’s obviously discriminatory registration provisions. 

Holmes is a legend among legal scholars.  A hero in the Civil War, wounded three times, Holmes studied law at Harvard, and then, while working as an attorney, wrote articles about the philosophy of law, many of which are still today read by law students.  He served as chief justice of the Massachusetts Supreme Judicial Court as his reputation soared.  His successor on the Supreme Court, Benjamin Cardozo, praised him as “probably the greatest legal intellect in the history of the English-speaking world.”  To this day, Holmes is widely thought of as a great champion of civil liberties and an unwavering defender of democratic ideals.

But Holmes had a darker side that receives far less publicity.  He was a Social Darwinist who believed fervently in the superiority of the white race, and in religion, his views of Catholics and Jews were equally intolerant.  In 1927, in Buck v Bell, Holmes, in upholding the forced sterilization of a young woman deemed, mistakenly as it turned out, to be mentally retarded, he wrote, “Three generations of imbeciles is enough.”

In Giles v Harris, his opinion was short, contrived, illogical, and devastating.  He granted that the evidence had demonstrated “the whole registration scheme of the Alabama Constitution is a fraud upon the Constitution of the United States.”  But, he went on, if the Court ruled in Giles’s favor, it would become “a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists.” 

Huh?

To follow this absurd reasoning, any law that was discriminatory would be a “fraud,” and the Court would become party to that fraud by protecting any plaintiff’s right as a citizen. 

But Holmes was not done.  He also claimed, as does the current conservative bloc, that the Court could not enforce “political rights,” such as voting, overlooking that the 15^th Amendment had been enacted to protect that very political right.

After Giles, with the Supreme Court’s complicity, more than ninety percent of African American voters in the South were soon disenfranchised.  The horrors of Jim Crow were quickly sucked into the vacuum. 

The similarity of these opinions to the reasoning employed by the Roberts Court is more than a bit disquieting.  In such decisions as Shelby County v. Holder, disemboweling the Voting Rights Act, and Hawaii v. Trump, upholding a Muslim travel ban, the majority relied on same tortured logic and the same willful blindness that dominated Supreme Court decisions in the Jim Crow era.

Now, by pretending that a law in which Black voters were robbed of the ability to have a genuine voice in the selection of their congressional representatives was only coincidentally race-based, the conservative justices have once again walked in the footsteps of those who used their position to pervert democracy rather than promote it.