The Roberts Court Takes a Page from Plessy v. Ferguson

Nothing is new and history repeats. When the Supreme Court delivered a death blow to the 1965 Voting Rights Act last month, endangering the project of multiracial democracy that flowed from the Second Reconstruction of the 1960s, it did so by using many of the same logical—and illogical—devices the high court deployed to help end the first Reconstruction. From the late 19th century, the Roberts Court borrowed the false naïveté and judicial supremacy that define some of that era’s darkest opinions. 

There are obvious echoes between Louisiana v. Callais, in which Justice Samuel Alito’s majority opinion finished off the VRA, and the notorious Plessy v. Ferguson decision, in which the court blessed Jim Crow. The Roberts Court is in many respects a neoconfederate court, and it repeatedly applies the tactics and ideas of the 1880s and 1890s court, whose members likewise could not abide a robust vision of equality.

In the 1896 case, the Supreme Court ruled that a Louisiana law separating white and Black rail passengers was constitutional, affirming the principle of separate-but-equal. Plessy would eventually be overruled by Brown v. Board of Education and other 1950s cases that found separate-but-equal to be inherently unequal. Whereas the court, and the country, came to understand that separate was not equal, the Plessy majority found the railcar segregation mandate to be a race-neutral law that applied fairly to both white and Black people. Plessy rejected the “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority,” as Justice Henry Brown wrote for the 7-1 majority. “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

With these words, the majority blinded itself to the reality that, in a white supremacist society, separation would obviously be unequal, and confer a badge of inferiority upon the people forcibly segregated. Justice John Marshall Harlan, the lone dissenter, pointed out the fallacy of assuming Louisiana’s law was innocent. “The real meaning of such legislation” is that the “colored citizens are so inferior and degraded that they cannot be allowed to sit in the public coaches occupied by white citizens,” Harlan wrote in his famous dissent. Though this was patently clear, the majority would not admit it.

Instead, the Plessy majority somehow ascribed reasonable motives to the rail car law, finding them in line with the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order.” Further, the opinion noted the court must be deferential to the legislature’s reasons for passing the law.

More than a century later, Louisiana enacted a different law, a new congressional map that gave the state’s Black residents a majority in just one of six districts, even though the state’s population is a third Black. Under the decades-old understanding of the VRA, multiple courts ordered Louisiana to draw a second Black-majority district to afford Black people the same opportunity to elect representatives of their choice as everyone else. Louisiana complied, only to be sued by non-Black plaintiffs who argued that the map discriminated against them. In Louisiana v. Callais, the high court’s Republican-appointed majority agreed, striking down the map and making enforcement of the VRA in redistricting virtually impossible. The expected effect will be the largest drop in Black and brown representation in Congress, state, and local government since the end of Reconstruction.

Like the Plessy court, the Roberts Court in Callais creates a list of kosher, race-neutral criteria that can legally animate new political maps and must be left to the state’s discretion. The VRA “does not intrude on States’ prerogative to draw districts based on nonracial factors” including “traditional districting factors such as ‘compactness, contiguity,’ ‘maintaining the integrity of political subdivisions, preserving the core of existing districts,’ and protecting incumbents,” Alito wrote in Callais. To this list he added, crucially, partisan motivations: “In considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim.”

Just as Plessy denied the discriminatory reality of segregation and instead found it to be a reasonable policy, Callais ignores the inseparability of race and party affiliation, asserting that partisan gerrymandering is race-neutral when it is demonstrably not. As Jamal Greene of Columbia Law School says, there’s a “kind of narrow thinking that doesn’t notice obvious social context” in both decisions.

In Callais, “Alito says, ‘Well, you can separate out political effects from racial effects,’ when it’s obvious it’s not just an arbitrary fact which candidates and which political parties Black Americans in the deep South support,” Green continued. “That’s not an exogenous fact unrelated to politics or history. The idea that you can say that those are separate is a kind of naïveté that one could easily accuse the Plessy majority of as well.” 

Instead of acknowledging the real world, Alito demands there be evidence of intentional discrimination in order to trigger a violation of the VRA. The law, he writes, “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race” as opposed to their party affiliation or other race neutral criteria.

It’s unclear what evidence might meet Alitio’s high bar for “a strong inference” of race-based gerrymandering. Just two days before the court handed down its Callais decision, it reversed a district court finding that Texas had enacted an unconstitutional racial gerrymander despite a lot of evidence. “What the court has said now is, ‘Show us the N-word, show us the swastika,’” says Georgetown law professor Michele Goodwin. “Basically, you’ve got to be using racial epithets before the court is willing to see that there is any intentionality of racial discrimination.” That would have been a tough standard even for the Plessy court.

Both Plessy and Callais share a stunted understanding of what the Reconstruction Amendments require. To put a stop to Reconstruction and institute the discriminatory systems of Jim Crow, the Supreme Court chose to view the 13th, 14th, and 15th Amendments in the narrowest sense possible. To the Plessy court, a purportedly race-neutral law did not run afoul of these Reconstruction Amendments, even if its effect was gross discrimination. Likewise, the Callais decision threw out Congress’ mandate that discriminatory effects are enough to enforce the VRA, and instead mandated there must be a finding of discriminatory intent.  

In this way, Harlan’s canonical dissent in Plessy could, in many parts, apply to Callais too. In his view, a law doesn’t fulfill the Constitution’s obligations to equality if its effects are discriminatory. Quoting a previous decision, Harlan insisted that the Reconstruction Amendments did not just require civil rights on paper but created an affirmative mandate of equality: “‘The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right… exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.’”

Contrary to this view, the six GOP appointees on today’s court contend that if a law is race-neutral on its face, its effects are immaterial. Ironically, they claim Harlan’s dissent in Plessy as justification. In the most famous line, Harlan wrote that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” From this sentence, the Roberts Court has justified a jurisprudence that prohibits race-conscious policies enacted to create equality, taking the mandate to color-blindness to apply only to the text of the law—even when doing so perpetuates the very segregated, caste system that Harlan opposed. 

Harlan, of course, was not arguing for a context-blind, effects-blind reading of the Constitution. As Greene points out, Harlan’s use of the term “color-blind” itself took context into account. “The reason he chose to use the term color-blind rather than discriminate is because he was facing a majority opinion that said that recognizing color is not the same thing as discriminating,” Greene explains. “He’s responding to that by saying, ‘Look at the world that we live in. Of course recognizing color is the same thing as discriminating.’” Look around, Harlan urged. But the majority, then and today, refuse to.

Callais isn’t the first time the Roberts’ Court has decided to stick to the appearance of race neutrality over laws that aim to remedy the effects of segregation. Just five years after Roberts’ confirmation, Greene noted in a 2011 law review article that the blinders used in Plessy were already back on. “We might reasonably imagine an imperative for judges to look beyond the formalism of the Separate Car Act and to consider equality as a substantive guarantee, but that imperative, if it once existed, has been disavowed by the modern Court,” Greene wrote. “One cannot establish an equal protection violation solely by demonstrating that a statute has the effect of entrenching racial inequality, and a statute that formally recognizes race but does so in the spirit of dismantling a racial caste system is presumptively unconstitutional.” Since that time, the court has doubled down on banning remedial race conscious programs while invoking Harlan’s color-blind language. 

Plessy also isn’t the only shameful chapter in Supreme Court history that Callais mimics. To Greene, the more apt comparison is actually to the Civil Rights Cases of 1883, in which the Supreme Court struck down the Civil Rights Act of 1875, which prohibited barring Black people from such places as hotels, railroads, and theaters. But the Supreme Court—with Harlan again alone in dissent—ruled that the 13th and 14th Amendments were too limited to create a right for Black people to enter these spaces. 

To critics who see the current Supreme Court draining Congress of its authority, Callais is a banner example. Congress passed the VRA under its 15th Amendment authority to remedy discrimination in voting after activists marched and died to show the nation the brutal racism they were up against. When the Supreme Court tried to impose an intent test onto the VRA in a 1980 decision, Congress responded by amending the law to mandate an effects test. (Notably, Roberts fought against the effects test from his then-perch as a Justice Department lawyer.) Congress reauthorized this version of the VRA as recently as 2006, which was signed by George W. Bush. In response to this popular legislation, the Supreme Court stepped in with a judicial veto.

“It’s just a hyper judicial supremacist intervention,” says Greene, hearkening back to “the worst historical example” of judicial supremacy, the Civil Rights Cases. In the 1870s, Greene explains, opening public accommodations to Black people is “a major, major demand of Black Americans,” and one that is then “favored by large majorities in both houses of Congress, is favored by President Grant, is understood by everyone at the time to be necessary to equal citizenship for Black Americans.” Into this consensus rides the court with its Civil Rights Cases decision to strike down Congress’ project with an “egregious power grab.” (Not for nothing, the Roberts Court has also chipped away at the 1964 Civil Rights Act’s requirement that private businesses not discriminate.)

The Roberts Court’s proclivities eerily echo the Civil Rights Cases in other ways, too. In Callais and other decisions eroding the VRA and affirmative action, various contemporary conservative justices have opined that “things have changed dramatically” and that race-conscious laws cannot “extend indefinitely into the future.” (In Roberts’ first decision attacking the VRA, in 2013, he not only declared that racism was sufficiently over but boldly lifted an argument—without attribution—from the infamous Dred Scott decision.) In 1883, the high court similarly held it had simply had enough with civil rights laws and they couldn’t possibly go on forever. “When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws,” their ruling in the Civil Rights Cases declared. 

Harlan’s response applies as much to that decision as to Callais: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” 

The Supreme Court’s holdings in the Civil Rights Cases, Plessy, and others like them from the era entrenched white supremacist laws and practices for decades. But the justices of that time did not have the final say. The Roberts Court, likewise, need not have the final say, if Americans strongly object. The Supreme Court is our least democratic branch, but it still bends to the people.