Supreme Court revives its worst decision

 

Gordon L. Weil

 

The worst decision ever made by the U.S. Supreme Court was its 1857 ruling in the Dred Scott case.

The Court has just issued an obvious offspring of that decision. 

In Dred Scott, the Court majority decided that African residents, brought to the country as slaves or their descendants, were not citizens, even if they were free, because the founders of the U.S. had not considered them to be eligible for citizenship.  The decision said:

We think ... that they [Black people] are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America's founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

This was racist originalism.  Africans were not citizens when the country was created, the Court found, and thus could not later be citizens.  In fact, the Constitution guarantees the rights of “persons” not only “citizens.”

There were two dissents.  One noted that African Americans were citizens and voted in five states when the U.S. was created under the Articles of Confederation.   Some states had ended slavery.   Thus, the majority was flat wrong.  The second dissenter found that U.S. federal law, which recognized that Blacks could be citizens, prevailed over a contrary Missouri statute.

Despite the passage of the Civil War constitutional amendments, many African Americans were denied their civil and voting rights until the 1960s.  The 1965 Voting Rights Act provided that the federal government could ensure states did not block full Black suffrage and could require federal advance approval of changes affecting minority voting in some locations.

The legacy of the Civil War was redeemed by this legislation.  But the current Supreme Court eliminated federal pre-approval of voting changes on the grounds that racial discrimination no longer exists.   It now appears poised to eliminate federal power over states to prevent discrimination, leaving it to the courts to deal with electoral bias case-by-case.

Because the Republican margin in the House of Representatives is extremely narrow, President Trump urged states under GOP control to modify district boundaries, usually done after the census every 10 years, to increase Republican majority districts before the 2026 elections.   His Department of Justice found the current Texas districts discriminate and sought change.

Texas redistricted to add five GOP seats.  Its action was challenged on the grounds that the redistricting was both partisan and intentionally discriminatory.   The Texas GOP replied that redistricting was purely for partisan purposes, which is legal, and to meet DOJ requirements.

A U.S. district court ruled that the redistricting was discriminatory.  In redrawing the lines, Texas intentionally reduced the possibility of seats going to Blacks.    To reach this conclusion, the court had conducted nine days of hearings, received testimony from 23 witnesses and collected thousands of exhibits.   It produced a record of more than 3,000 pages.

The Supreme Court is supposed to defer to the factual judgment of district courts unless they are clearly unreasonable.  Justice Elena Kagan, a dissenter, said that the district court’s work had been rejected over a single holiday weekend.  The majority simply overruled the district court, apparently ignoring its extensive record, and believed Texas.

The Court’s majority criticized the district court for not having shown deference to the Texas Legislature.  It also said the lower court should have produced an alternative map, accepting without questioning the DOJ claim that the current map was discriminatory.

This ruling may forecast the upcoming decision on federal review of state districting.  It is almost certain to strip the Voting Rights Act of any federal powers to prevent discrimination.  It will become an unenforceable law, possibly left only to individuals who believe they have suffered racial discrimination.

The Court majority asks people to believe that discrimination does not exist or is so rare that federal protection of voting rights is no longer necessary.   This finding must overcome any evidence that Blacks suffer from official bias, because they are black.  It must rely on the fact that most Blacks vote Democratic and color-blind partisan redistricting is legal.

The Civil War and the Voting Rights Act may have forced the country to allow Blacks to vote, but they did not prevent those in power from making Black votes meaningless.  The Court echoes Dred Scott’s message that they have “no rights or privileges but such as those who held the power and the Government might choose to grant them.”

 

 

Trump -- racist or opportunist?

Gordon L. Weil

Terry Moran, an ABC correspondent, recently wrote on his social media site that Stephen Miller, a Trump aide, is a “world class hater.”   What’s worse, he made a similar comment about President Trump.  That got him fired by ABC, which is going to great lengths to placate Trump.  Also, reporters should not express their personal views of people they cover.

Are Trump and his administration racist, sexist, or antisemitic, degrading some groups to favor the preferred club of white men?  In one form or another, this charge has been made against Trump ever since he began running in 2015.

One easy explanation is that Trump himself is not racist, but that he sends signals to biased voters that he sympathizes with them to gain their political support.  His attitude may encourage more open prejudice against Blacks, women, Jews and others.   But Trump usually avoids saying the wrong thing.

With one truly major error.  When he equated virulent, antisemitic rioters in Charlottesville with peaceful demonstrators, (“good people on both sides”), he either unmasked innate racism or carried too far his exploitation of the understated racism of his backers.

It Trump is not a racist, he would rank as an opportunist.  He exploits other people’s prejudice. He attacks anybody, and has his own distinctive style of discrimination when it comes to people he regards as an inferior opponent or a “loser.”   

The signal that he dismisses you comes when he gives you a demeaning nickname.  Clashing over the handling of the L.A. riots, Trump labelled California Gov. Gavin Newsom as “Gov. New Scum.”  Not only is this unacceptable in civil society, but such childish name-calling by a bully is yet another sign of what looks like a fifth-grader’s mentality.

After nationally recognized events revealed institutional racism, official agencies undertook programs to encourage diversity, inclusion and equity.  DEI became a way of ensuring that minorities that had been subject to discrimination would be encouraged to enter the mainstream life of the country.

This awareness of embedded racial discrimination came to be called “woke.” It applied to efforts to ensure and promote open access to equal treatment. 

But it went beyond open access to provide what looked to some like preferential access to jobs and other opportunities.  In such cases, it seemed to focus on their situation above the needs of most average people.  This gave rise to understandable opposition to woke, notably by the president.

Trump quickly exploited the concerns of those who saw woke as favoritism.  He asserts that, by recruiting minorities and women who have historically been the victims of discrimination, government has hired and promoted people of inadequate merit or competence.  If something goes wrong, he can blame it on incompetent DEI recipients.

Using federal funding flows, he punishes non-governmental entities, especially universities, for their DEI policies or alleged antisemitism.  The best way of rejecting DEI is to swiftly remove from positions of power anybody who is the member of a group that may have benefitted from equal access, regardless of their competence.

But even that is not enough.  Not all the history of a country is exemplary.  Slavery and Jim Crow racism in the U.S. is a matter of fact.  The exclusion of women from their rightful place in the professions and public life is also beyond debate.  Yet, Trump’s anti-woke policy demands rewriting history to downplay past injustice, reopening old wounds.

If Trump is not a racist, he has given racism and its supporters aid and comfort and allowed them to become more public without embarrassment.  He has undone decades of progress toward a more equal society and reversed it. If not done out of conviction, it is done for political gain.

He has also tried to distort and exploit discrimination.  The Gaza conflict raised strong opposition to Israel’s extreme measures in its over-retaliation for the horrendous and despicable Hamas attack.  Its actions, including starvation, seem aimed at the ethnic cleansing of the area.

Trump charges people with being antisemitic if they show sympathy for innocent Palestinians, who themselves have lived under Hamas control.  Opposition to Israeli official policy toward innocent Palestinians amounts to antisemitism.  When an incident occurs, he sharply criticizes the anti-Jewish attackers, but shows no sympathy for the Jewish victims.

If we are to believe that the U.S. is better off now resulting from the war against DEI, ask those who have suffered.

Do Blacks, Hispanics, Jews, and women feel more comfortable in Trump’s supposedly merit-based society than they did before he returned to office?  

Can universities, heavily punished for the excessive outbursts of a few students, continue to produce world-class research? 

Is the government now more competent and unbiased than before he came to office? 

Where does it end?