Conservatives twist language in racial gerrymandering case

Goldstone’s most recent book is “Because of Race: The Supreme Court, White Supremacy, and the Ravaging of African-American Voting Rights.

Recently, the Wall Street Journal, which has never shied away from twisting language to maintain a status quo that serves its target audience at the expense of less wealthy or powerful Americans, published an op-ed taking the new Supreme Court Justice to task. Ketanji Brown Jackson. His offence? Jackson had the audacity to oppose the idea that the 15th Amendment, which guarantees “equal protection of the laws”, could not be used to protect black citizens from unequal treatment, because it would result in a unequal treatment for whites.

The amendment, she noted, was not “colorblind,” but rather was created specifically to protect freed slaves, from whom most black Americans are descended. “The drafters themselves enacted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” she said. Jackson further angered the Journal by claiming his was the “originalist” interpretation of the amendment.

The case in question was Merrill v. Milligan, an equal rights challenge against Alabama’s 2021 Congressional map that forced black voters into a single district, leaving six dominated by white voters — this in a state where more than a quarter of the population is African American. In January, three district court judges, including two appointed by Donald Trump, unanimously ruled that Alabama’s plan violated Section 2 of the Voting Rights Act of 1965 and ordered state to draw a new map. In February, however, the Supreme Court (in a 5-4 decision) suspended the ruling until it could hear the case itself. This allowed Alabama to conduct primaries using the contested district map. The court did not take up the case until October, long after it could have had a practical impact on November’s midterm elections.

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That during the closing arguments the conservative justices claimed that the redesigned districts were simply “politically” based, rather than racially discriminatory, was not at all a surprise. Ever since Oliver Wendell Holmes helped inaugurate Jim Crow with his 1903 opinion in Giles v. Harris, judges hid behind the separation of powers to avoid inserting themselves into the political process – except, of course, when it served their interests, as in Citizens. United. As a result, by making the redistricting of Alabama political, the court will be able to invoke the equal protection clause of the 14th Amendment to avoid forcing Alabama to add a second black-majority seat.

But Jackson wasn’t going to let his fellow conservatives get away with it this time. For her, the fact that Alabama’s plan was racially motivated was both obvious and indisputable and to claim otherwise was absurd.

It was too much for the Journal. The columnists claimed that Jackson’s “goal was to refute the idea that the Equal Protection Clause would be encroached upon if the Supreme Court forced Alabama to gerrymander by race to give the state a second majority black seat in bedroom”. They conveniently chose to omit the fact that the Republican majority in the Alabama Legislative Assembly had already gerrymander the district to prevent a majority black second district.

Incredibly, to support its argument, the Journal cited the famous 1896 dissent of Judge John Marshall Harlan in Plessy v. Ferguson. In that case, eight of nine justices ignored the safeguards of the 14th Amendment and upheld a blatantly racist Louisiana law forcing black American citizens to ride in smoky, dirty, substandard railroad cars on the grounds that separate facilities were constitutionally acceptable as long as they were “equal”. .” Harlan was the lone dissenter as he had been in another racist ruling in civil rights cases 11 years prior.

“Our Constitution is color blind and does not recognize or tolerate class among citizens,” Harlan wrote in Plessy. “All citizens are equal before the law. The most humble is the peer of the most powerful. The law considers a man as a man and takes no account of his environment or his color when his civil rights as guaranteed by the supreme law of the land are in question. The Journal acknowledged Harlan’s failure to convince his colleagues, but said “the principle is sound”. They added, “A Harvard Juris Doctor should not understand the phrase ‘equal protection of the laws’ and know that treating citizens differently based on race is the opposite.”

By this absurd reasoning, no civil rights law would be allowed because all of them require that, to remedy discrimination, certain citizens be treated differently based on their race. If the Journal wanted a more appropriate example to use as a parallel, it should have turned to Judge Stephen Field’s 1879 opinion in Ho Ah Kow v Nunan, where he wrote:

“When we sit on the bench, we are not blinded and forbidden to know as judges what we see as men; and where an ordinance, though general in its terms, applies only to a particular race, sect, or class, it being universally understood that it is to be applied only to that race, sect, or class, we may rightly conclude that it was the intention of the body adopting him that he should only have such an operation, and treat him accordingly.

Field was not liberal. He was a fierce defender of property rights and known to be cantankerous, suspicious, vengeful, stubborn and convinced of his own righteousness. (He sometimes carried a gun in his court robes, and most of his comrades thought he would be happy to use it.) He had also made bigoted statements about Chinese immigrants several times.

But here, Field got it right. The purpose of the 14th Amendment was not to impose false equality, where those in power could profess that they were the ones discriminated against, but rather to create a fairer and more just America. To postulate otherwise, as the Journal and the conservative judges have done, is not so much color blindness as willful blindness.

For the United States to come closer to the ideals we attribute to those who drafted and ratified the United States Constitution, parsing must not be allowed to overwhelm the ideals. Without these ideals, democracy, already an extraordinarily difficult system to maintain, cannot survive.

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