At this week’s Supreme Court oral arguments over the fate of Section 5 of the Voting Rights Act, conservative hero Antonin Scalia said something instantly infamous when he referred to the re-authorization of the Voting Rights Act as the “perpetuation of racial entitlement.”
Of course, obliviousness to offensive racial rhetoric is nothing particularly new from the conservative justices on the Roberts court in oral arguments. But it’s not just the way the majority in the Roberts court talks about race, it is the way they have gone about declaring unconstitutional practices we use to pursue racial equality in a society that is to this day shockingly unequal.
The guiding theory of the Roberts court’s jurisprudence on racial discrimination is a belief in colorblindness itself as a guiding constitutional principle rather than the more substantive goal of actual racial equality. Achieving racial equality has, throughout the country’s long, painful, violent racial history, required constant application of laws, metrics and approaches that are acutely race-conscious.
You need to analyze the racially disparate effects of, say, a proposed voter ID law, in order to make sure you preserve equal access to the ballot. Universities committed to diverse student bodies, need to consider the race and ethnicity of their applicants, and school districts committed to integration need to monitor and track the racial makeup of their student body.
The Roberts court’s conservative justices have no patience for any of this.
In his dissent from a 2006 Texas voting rights case, Roberts famously proclaimed that he found the government’s intensive involvement in achieving racial equality in redistricting an icky affair. “It is a sordid business,” he wrote, “this divvying us up by race.” And a year later, when the court struck down two school districts’ broadly popular integration plans, Roberts declared his rationale with the fatuous declaration that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
That sentence is a perfect distillation of Roberts’ jurisprudence on race with all of its appealing pseudo simplicity, its adolescent sophistry. It’s a very short distance from the logic of that reasoning to asking why isn’t there a white history month. The Roberts prescription of colorblindness, of course, requires the court, politicians and citizens to simply ignore, or forget the actual history of actual places and people and institutions and laws and traditions and cultures. The lived experience of human beings embedded in a real, existing society, where cutesey Koan-like proclamations fail to reckon with the awesome breadth and depth of the fact of slavery, Jim Crow and their twin legacies.
And never was this more apparent than in the actual Voting Rights case before the court this week, where the conservative justices wanted to talk about the abstract principles of federalism while almost entirely ignoring the actual record, the 15,000 pages of documentation that Congress assembled during its re-authorization hearings, and the raft of restrictive voting laws still being passed–and in some cases struck down–in the states covered under Section 5.
It was left to Sonia Sotomayor to raise the inconvenient fact that the actual plaintiff in the case, Shelby County, Alabama wasn’t exactly a model of racial enlightenment, since the city of Calera redistricted its lone black city council member out of a seat in 2008. And that was just one of many such instances.
Justice Sotomayor: Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.
Mr. Rein: Well, I - Justice Sotomayor: In – in the period we’re talking about, it has many more discriminating –240 discriminatory voting laws that were blocked by Section 5 objections. … And why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?
It reminded me of the moment on our show last week when, as we were debating the Voting Rights Act, Bishop Harry Jones interjected to respond to Horace Cooper, who had argued that Section 5 of the Voting Rights Act was outdated, to say this:
“I would challenge him to come to Alabama and run for office and see if he can win. And I think that one of the things that we have to also look at the fact is that Section 5 has been the one thing that has leveled the playing field.”
Before the Supreme Court heard oral arguments in Shelby v Holder, John Lewis, a man who has lived the history of the struggle for voting rights as much as anyone spoke on the steps outside on behalf of the history that roughly one hour later Roberts and Scalia seemed only too happy to erase.
“There are still forces in this country that want to take us back to another period, but we’re not going back. We have come too far. We have made too much progress to go back. The literacy test may be gone…But people are using other means, other tactics and techniques.”
Right now, this morning, that same John Lewis is in Selma, Alabama, commemorating the 48th anniversary of the Selma Montgomery march, and I have to say, the country would be a lot better off if Roberts and Scalia were down there with him.