Kilpatrick’s Children

The Supreme Court’s Voting Rights death-strike is part of a much longer struggle

Most of the headlines among the wetter Democratic and Democrat-affiliated email pushers tended hysterical yesterday: “The Supreme Court just took another sledgehammer to our democracy,” says Deluzio for Congress; “Supreme Court just effectively gutted the Voting Rights Act,” says former U.S. Attorney General Eric Holder on behalf of RedistrictingAction.org; “Supreme Court Strikes Down Louisiana Map and Destroys Key Voting Rights Act Provision,” says the ACLU.

But the more sober SCOTUS observers said… pretty much the same thing. “Six Conservative Activists Killed the Voting Rights Act,” says Jay Willis at Balls and Strikes. “Supreme Court Deals a Death Blow to the Voting Rights Act,” says Ari Berman at Mother Jones. “Alito Pens Decision That ‘Eviscerates’ The Voting Rights Act,” says Kate Riga at Talking Points Memo. (The words “eviscerates” and “guts” came up a lot in relation to the decision, as did “Jim Crow” and “Confederacy.”)

The Louisiana v. Callais opinion is a neat piece of work by Sam Alito. He takes Section 2 of the Voting Rights Act — the one that had heretofore empowered Congress to redress racial voting inequities in accordance with the Fourteenth and Fifteenth Amendments — and makes it, as Elena Kagan says in her dissent, “all but a dead letter.”

But Alito insists he hasn’t, because, he says, you can still seek redress for gerrymanders that split up majority-black districts in order to disempower them — so long as you can prove they were split up only for specific racial reasons and oh by the way, the Court has found that political gerrymanders are “not justiciable,” so if your gerrymander happens to disfavor Democrats as well as black people the Court will just assume they were created for untouchable political reasons and throw your case out:

When the vast majority of voters, regardless of race, favors the same political party, a map that is disadvantageous for members of one racial group cannot be explained on the ground that it was drawn to favor a particular political party. But in a State where both parties have substantial support and where race is often correlated with party preference, a litigant can easily exploit §2 for partisan purposes by “repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim.” Alexander, 602 U. S., at 21.

And we know from long experience how conservatives feel about black people trying to use legalisms to claim their rights — they treat ‘em like hippies in 60s cop shows yelling “police brutality.”

Throughout his opinion Alito reminds us that any use of racial preferences to achieve the ends of the Civil Rights Amendments is subject to “strict scrutiny,” because changing a district line to reverse discrimination is a nuclear option, to be employed with great regret only as a last resort in response to a “compelling interest.”

That compelling interest has been, in all the cases heretofore in which black people got their way, Section 2 — but only kinda-sorta and arguendo, Alito says; “we left open whether compliance with the Act ‘remain[ed] a compelling interest.’” But now that the coast is clear, “The Court now holds that compliance with §2, as properly construed, can provide such an interest.” Italics in the original — and, as we have seen, proper construal Alito-style is an impossible standard.

Hey, at least Alito didn’t tear it out of the law books! But other than that he is not conciliatory, in tone or anything else. He perfumed it with Latin and precedents — what else is needed? Next time there might not even be that much.

In his consideration of the ruling, Adam Serwer starts with the mid-century ravings of the racist columnist James J. Kilpatrick against the Voting Rights Act (“revolutionary act by a judicial junta which simply seized power”) and against black people in general (“the Negro race, as a race, is in fact an inferior race”). He then notes Kilpatrick’s strategic heel turn some years later when his more overt racism had fallen out of favor:

...by the 1970s, this segregationist had refashioned himself as an opponent of racial discrimination, a champion of color-blindness. Liberal egalitarians supporting race-conscious remedies, he argued, were “worse racists—much worse racists—than the old Southern bigots.” His transformation was so complete, he joked, that he was like the convert who “became more Catholic than the Pope.”

[I will insert here that Kilpatrick rang many changes on this routine — e.g., “the bureaucrats of [the U.S. Department of Health, Education, and Welfare] have done more to destroy good race relations in the past ten years than the Ku Klux Klan did in a century.”]

In fact, Kilpatrick’s conversion was no conversion at all. To understand it is to understand the Roberts Court’s decision today in Louisiana v. Callais... The majority opinion uses procedural language to obscure what its rewriting of the VRA will allow lawmakers to do: engage in racial discrimination in drawing political districts as long as they say they are doing so for a partisan purpose rather than a racist one—as if the results would not be identical.

Thin as that camouflage is, in many other cases now it is fully transparent. You may recall the whole “DEI” panic, which some of us knew was bullshit from jump but which all conservatives and some people who pretended not to be conservatives claimed was The Real Racism — just as Kilpatrick professed to believe government bureaucrats pushing equality were The Real Racists. To their applause, Trump promised to reverse it.

Since then we’ve seen this administration systematically remove live black people from positions of power and dead ones from historical respect. (It does something similar with women and other minorities.) You don’t see Bari Weiss or most of the other Harpers’ Letter signatories complaining about how he did it, and I’m sure you don’t wonder why not.

As was to be expected, the temporarily stalled Republican redistricting rampage has gone back into high gear, as their gerrymanderers can be certain that no one will mess with their maps no matter how outrageously they carve up minority districts. The net effect — and no one is pretending otherwise — will be reduced minority representation in government; as much Jim Crow, that is, as they can get away with, until they can get away with more.

The Democrats’ recourse is simply to keep at their fire-with-fire redistricting campaigns in blue states and — as Barack Obama as much as said yesterday — to vote harder. Well, that might help — it has already been remarked that, with the current administration historically hated, even the most egregious Republican gerrymanders could backfire by diluting the white vote.

But if you want people to vote harder, you have to give them something to vote for. It is to be hoped that at least some Democrats will also state plainly to the voters (much more plainly than most of them have been inclined) what this reversal, and the others like it we keep seeing, is really about: An attempt to reverse the results, not only of the Civil Rights Movement, but also of the Civil War — that is, to the extent this has not already been achieved. In the face of such energetic revanchism, and as courts destroy the very mechanism by which we might fight back and then say it’s working as intended, it is especially important to make sure that no one is confused about the scam and the stakes.