At the 10th anniversary of the act in 1975,
there were 17 Black members of Congress, up from six in 1965. All but
one of them served in the House of Representatives. At the 20th
anniversary in 1985, there were still only 20 Black Americans in the
House (and none in the Senate). By 1995, however, there were 43 Black
Americans serving as voting members of Congress, including one senator,
Carol Moseley Braun of Illinois. This, even after the Democratic Party
suffered its largest congressional defeat of the postwar era.
Nonetheless, it would take another 20 years before Black Americans’
share of the House approximated their overall share of the population.
With its decision in Louisiana v. Callais
last week, the Republican-appointed supermajority on the Supreme Court
has delivered the latest in a string of decisions — stretching back to
Shelby County v. Holder in 2013 — that have weakened the Voting Rights
Act’s ability to stop racial discrimination in voting and to secure fair
representation in both Congress and state legislatures. Led by Chief
Justice John Roberts, the conservative justices have sidelined
lawmakers, invented doctrines and ignored their own rules and procedures
in a relentless drive to trim the Voting Rights Act beyond all
recognition.
In
this case, the court gave Republican-led states in the South the tools
necessary to destroy majority-minority legislative districts under the
guise of partisan gerrymandering, newly blessed by the court as a
legitimate aim of state lawmakers. In concurring opinions, the
conservatives say that this is a blow to equal protection — a step on
the path to a “colorblind Constitution” that has put an end to a
“disastrous misadventure” in voting rights jurisprudence.
As
a tool, the majority-minority district functions as a prophylactic — an
obstacle to politicians who might want to undermine or eliminate
minority representation for invidious reasons. As long as those
districts exist, these communities — formed by historical circumstance
and shaped both by past discrimination and present-day disadvantage —
will have some representation in
their state legislatures and in Congress. It is less likely that they’ll
be ignored, neglected and left to fend for themselves.
Descriptive
representation, as it is known, is not perfect; race alone does not
guarantee that a lawmaker will act in the interest of his or her
community. But the record suggests that in places where racial
polarization is the norm, where the legacy of Jim Crow segregation
shapes the political and social landscape, the opportunity provided by a
majority-minority district can mean the difference between some
representation and none at all.
For the Roberts court, however, these districts are little more than a “racial entitlement,” to borrow a phrase
from Justice Antonin Scalia. In the court’s view, you may have the
right to vote, but you do not have the right to representation, and
certainly no right to representation that supports “racial
classification” — as if the government is the reason that Black
Americans see themselves as a discrete and particular community — or
outweighs a state’s purported right to engage in partisan
gerrymandering.
In the name of a
colorblind Constitution and the equal protection of the laws, then, the
Supreme Court has given the green light to a gleeful attempt to end
Black political representation at the state and federal levels. And as
long as there isn’t clear evidence of intentional discrimination — a
standard that would have been difficult to prove at the height of Jim
Crow, which rested on the same fiction of facial neutrality — it passes
constitutional muster. In fact, lawmakers in Louisiana, Alabama,
Tennessee and Mississippi are already planning special legislative
sessions to apply the court’s ruling and erase the majority-minority
districts in their states.
At a
minimum, the 14th and 15th Amendments to the Constitution were written,
passed and ratified to end the subordination of Black Americans and
ensure their representation in the political community. It is perverse
that this Supreme Court has used both amendments to facilitate what
might become the largest reduction in Black representation at the
federal and state levels since the end of Reconstruction and the
“redemption” of the South. Words meant to secure the political equality
of all Americans are being raised as weapons to deprive them of just
that.
Here, we see the problem with
conservative “colorblindness.” A constitution that doesn’t see color — a
constitution that treats all classifications as one and the same in a
country defined by its sordid history of racial subordination — is a
constitution that cannot see group inequality. And worse, it is a
constitution that reifies this inequality through its willful blindness
to the plain realities of our society. Liberty for those who profit from
the cruel legacies of our past, endless struggle for those crushed
under their weight.
Speaking in 1883,
after the Supreme Court nullified the Civil Rights Act of 1875,
Frederick Douglass cried out for a court that would be as “true to the
claims of humanity” as it “formerly was to the demands of slavery”: “I
say again, fellow citizens, O for a Supreme Court which shall be as
true, as vigilant, as active and exacting in maintaining laws enacted
for the protection of human rights, as in other days was that court for
the destruction of human rights!”
Nearly a century later, Justice Thurgood
Marshall, rebuking colleagues who would uphold racial disadvantage in
voting as long as it was done with a patina of neutrality, warned
the court that “manipulating doctrines and drawing improper
distinctions under the 14th and 15th Amendments, as well as under
Congress’s remedial legislation enforcing those amendments, makes this
court an accessory to the perpetuation of racial discrimination.”
One imagines that both Douglass and Marshall would say much the same if confronted with the handiwork of Roberts and his court.
It
took more than half a century after Plessy v. Ferguson to get a court
that was willing to enforce the Reconstruction amendments and use them
to expand the substance of American freedom, not curtail it. For all our
current setbacks, however, we live in a very different world than we
did in the past. We do not need to wait a lifetime for change.
If
the Supreme Court is going to act as a partisan institution — as a
super-legislature whose judgments override the decisions of voters on
the thin basis of ideology — then the only path worth taking is to
discipline and transform the court with all the tools Congress has at
its disposal under the Constitution.
Beyond
court reform, Americans have to reacquaint themselves with
constitutional thinking — with the idea that we, the people, make
constitutional meaning. To the extent that the Supreme Court claims
broad authority to say what our Constitution means, it is in large part because we have given this authority to the justices through our indifference.
It
may be that the first step in truly reining in the court is to remember
that the Republic — and the Constitution that brought it to life — is
meant for us. It is ours to interpret and ours to transform.
ABOUT THE AUTHOR:
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before
that he was the chief political correspondent for Slate magazine. He is
based in Charlottesville, Va.
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