Racism at the Supreme Court

Racism: the systemic oppression of a racial group to the social, economic, and political advantage of another; Miriam Webster Dictionary

In 1965, President Johnson signed the Voting Rights Act, which ended the suppression of black voting in the South. For the most part, laws in Southern States did not explicitly prohibit black people from voting. Instead they imposed literacy tests and poll taxes, prohibited people from voting if their grandfather had not voted before the end of slavery, held white only primaries, and prohibited felons from voting. During the brief period of Reconstruction after the civil war, black people had the vote. However, by 1910, these laws eliminated virtually all black voting. Fewer than two percent of Black people in Alabama and Mississippi voted.

Consider literacy tests. On the face of it, they applied to every prospective voter. However, in 1880 about 76% of black people were illiterate, while only about 20% of white people were. A literacy test greatly reduced black voting. And if it also disenfranchised poor whites it was of little consequence to the White power structure.

Because the southern states had so thoroughly suppressed black voting, the 1965 Voting Rights Act required states that had a history of voter suppression to have their voting laws reviewed by the federal government before they could be enacted.

In 2013, however, the Supreme Court eliminated this requirement. In a 5 to 4 decision, John Roberts, writing for the majority, stated “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Roberts conveniently overlooked the fact that the increased participation of black people in voting in the South, which was the change he referred to, was directly due to the prohibition of laws that prevented black people voting.

Then, last week, the court further eroded the Voting Rights Act by upholding two Arizona laws. One requires throwing out ballots that were cast in a different precinct than the one the voter registered in. Since poor people move more frequently the law reduces the votes of people who are likely to be Democrats. The other law prohibits organizations from collecting absentee ballots from voters and delivering them to polling places. This too disproportionately affects Democrats.

In writing for the majority, Justice Alito’s blithely stated that, “The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.” The statement is nonsensical. A disparity in impact is precisely the fact that Black and poor people will be less likely to have their votes counted — that is not equal opportunity.

Recently, Congress voted to remove a bust of Supreme Court Chief Justice Roger Taney who wrote the decision in the 1857 case involving Dred Scott, a freed slave. Taney stated that people of African descent “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”

Now that was racism!

And so are the decisions that Roberts and Alito wrote. Both disadvantage black people “to the social, economic, and political advantage” of white people. On average black people live shorter lives, have more chronic illnesses, experience more stress in their lives, and have too little money.1 Laws that would redress these disparities include those that would increase the minimum wage, make health care affordable, reduce discrimination, reform the criminal justice system, reduce educational disparities, and reduce residential segregation. Those laws would be more likely if fewer black people were disenfranchised. And all have been opposed by the same power structure that is seeking to suppress Black voting.

The fundamental question we need to ask is whether we want laws that make it more likely that black other disadvantaged people live as long as white people and experience no more stress or poverty than white people. Or do we want a country that enacts laws that demonstrably contribute to the stress, ill health, poverty, and premature death of distinct segments of the population?

Perhaps the day will come when a bust of John Roberts or Samuel Alito replaces Tanney’s. For as much as millions of Americans would like to think that racism is a matter of ancient history, we will continue to harm black people — and many other disadvantaged people in this country — if we enable the Republican voter suppression juggernaut to trample on the democratic rights of black people, poor people, and other ethnic minorities.

The assault on multiracial democracy is underway. It is getting less attention than events like the collapse of the Surfside condo, but it is of far greater consequence to the future of our nation.

It is the duty of every American who believes in equality under the law to keep a close watch on what is happening and to speak up. One simple thing you can do is make sure that your circle of friends is aware of what is happening and is taking action to prevent it. Share the link to this essay with them.

And keep up with what is happening. The best way you can do that is to watch Chris Hayes and Rachel Maddow on MSNBC. I realize that for many people the shows seem to be too far left. But that is a characterization that is not helpful. I urge you to watch them because even strong shows like the News Hour are not paying enough attention to the modern-day racism of the Republican Party.

1. Biglan A. Rebooting Capitalism: How behavioral science can forge a society that works for everyone. Eugene, OR: Values to Action; 2020.

Anthony Biglan, PhD, is President of Values to Action and author of Rebooting Capitalism https://www.valuestoaction.com/